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TMI Blog2023 (9) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... M MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [ 1999 (2) TMI 627 - SUPREME COURT] , held that once execution of the promissory note is admitted, the presumption under Section 118( a ) would arise that it is supported by consideration. The accused has failed to establish his defence even on preponderance of probability, therefore, there was no occasion to shift onus of proof on the complainant to establish existence of legally recoverable debt or liability. Manoj Kushwaha (PW-1), Hotam Singh (PW-2) and Amrit Lal Kushwaha (CW-1) also stated about availability of funds sufficient to advance the loan, therefore, considering the statutory presumption in favour of holder of cheque absence of documentary evidence to establish financial capacity of the complainant is immaterial. In opinion of this Court, no patent illegality, perversity or impropriety is made out in the concurrent finding of conviction by learned Trial Court and the First Appellate Court. The sentence imposed by learned trial Court and affirmed by the First Appellate Court is proper and appropriate. Consequently, no interference in concurrent finding of conviction of petitioner for offence punishable under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to undergo simple imprisonment for six month. Feeling aggrieved by the judgment of conviction and direction to pay the compensation, Shri Krishan Pachori filed Criminal Appeal before the Sessions Court, Gwalior. Learned XIth ASJ, Gwalior vide judgment dated 20th September, 2019 passed in Cr.A. No.299 of 2018, affirmed the conviction and the direction to pay compensation and rejected the appeal. The impugned judgment is assailed in this criminal revision on following grounds : 1. Learned trial Court and the first appellate Court failed to consider the existence of legally recoverable debt or liability in absence of positive evidence. In this regard, the judgments of both the Courts suffer from illegality. The onus to prove existence of legally recoverable debt or liability was on the complainant. He failed to prove his financial capacity to extend loan of Rs. 6,27,500/- to the accused; 2. The cheques in question were given as security for purchasing a plot from the complainant. Despite payment of full consideration, the complainant with malafide intention misused the cheques. Learned trial Court and the first appellate Court committed grave error in overlooking the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision is to correct the patent defect or an error of jurisdiction or the perversity which has crept in the proceedings. However, the High Court, in revision, exercises supervisory jurisdiction of a restricted nature. It cannot re-appreciate the evidence, as Second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. Recently, in case of Malkeet Singh Gill v. State of Chhattisgarh , reported in (2022) 8 SCC 204, the Supreme Court observed as under- 10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the Appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short CrPC ) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 118( a ) would arise that it is supported by consideration. 12 . Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118( a ) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon his failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith definitions of may presume and shall presume as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20 . The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To dispr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibit (P-1) and Exhibit (P-3). Thus, the execution of Cheques in question was proved by complainant as well as admitted by the accused. In such a scenario, the presumption under Sections 118 and 139 would operate in favour of complainant- holder of cheque untill the contrary is proved by the accused, i.e , the cheque was not issued for consideration and in discharge of any debt or liability. The Supreme Court in case of Basalingappa Vs. Mudibasappa AIR 2019 SC 1983, summarised the principles regarding application of presumption under Sections 118( a ) and 139 of the Act, as under- 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence to establish availability of the amount alleged to be advanced as loan to the accused. The accused has failed to establish his defence even on preponderance of probability, therefore, there was no occasion to shift onus of proof on the complainant to establish existence of legally recoverable debt or liability. Manoj Kushwaha (PW-1), Hotam Singh (PW-2) and Amrit Lal Kushwaha (CW-1) also stated about availability of funds sufficient to advance the loan, therefore, considering the statutory presumption in favour of holder of cheque absence of documentary evidence to establish financial capacity of the complainant is immaterial. In opinion of this Court, no patent illegality, perversity or impropriety is made out in the concurrent finding of conviction by learned Trial Court and the First Appellate Court. The sentence imposed by learned trial Court and affirmed by the First Appellate Court is proper and appropriate. Consequently, no interference in concurrent finding of conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act and sentence imposed, is called for in exercise of revisional jurisdiction. The revision-petition being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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