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TMI Blog2023 (4) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat [ 2012 (12) TMI 106 - SUPREME COURT ], has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent rates @1177/- per box from him. He alleged that though total consideration of Rs.10,60,000/- was to be paid by the accused, but he paid sum of Rs. 60,000/- in cash and issued cheque amounting to Rs. 10.00 lac, towards discharge of balance amount, but fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured. Since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent court of law. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 27/28.1.2022, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused preferred an appeal before the learned first appellate Court, but same was dismissed vide judgment dated 13.9.2022. In the aforesaid background, accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder of the cheque that same was issued towards discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. Probable defence can be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence. 9. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy. 10. With a view to rebut the presumption, accused tried to set up a case that cheque in question was not issued in favour of the complainant, but in favour of one Ram Kumar, but such defence of him never came to be probablized. It has been claimed by the petitioner accused that no case could be regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 13. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power. 14. True it is that the Hon ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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