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TMI Blog2023 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... the said debt, the revision petitioner had issued Ext.P1 cheque. Ext.D1 agreement purportedly executed between the revision petitioner, first respondent and Binukumar, establishes this aspect. Hence, the prosecution initiated against the revision petitioner is bad - revision petitioner does not dispute the execution and the issuance of Ext.P1 cheque. His defence is that, as per Ext.D1 agreement, Binukumar was paid only Rs.50,000/- by the first respondent. There is no illegality or impropriety in the concurrent findings of the courts below, which establish that the revision petitioner had issued Ext.P1 cheque in discharge of a legally enforceable debt and has failed to shift the reverse onus of proof under Section 139 of the N.I.Act. Quantum of sentence - HELD THAT:- The Trial Court had sentenced the revision petitioner to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.2,00,000/-. The Appellate Court modified the sentence by directing the revision petitioner to undergo simple imprisonment for a period of 15 days and to pay a compensation of Rs.2,75,000/- and on default to undergo simple imprisonment for a further period of 2 months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Magistrate. The revision petitioner got himself enlarged on bail. On completion of the statutory procedural formalities contemplated under the Code of Criminal Procedure (in short, Cr.P.C.) , the complaint was posted for trial. Trial 4. The first respondent was examined as PW1 and Exts.P1 to P6 were marked through her. The revision petitioner examined two witnesses as DWs1 and 2 and Ext.D1 was marked through PW1. The statement of the revision petitioner was recorded under Section 313 Cr.P.C. Trial Court Judgment 5. The Trial Court, after analysing the evidence and materials on record, convicted the revision petitioner for an offence under Section 138 of the N.I.Act and ordered him to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.2,00,000/- to the first respondent, and in default to realise the amount as a fine under Section 421 r/w 431 of the Cr.P.C. 6. Confronted with the said judgment, the revision petitioner filed Crl.A No.49/2009 before the Appellate Court. Appellate Court Judgment 7. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment confirmed the conviction, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only flaw in the prosecution is that Ext.P1 cheque was signed and written in two inks. He drew the attention of this Court to the decisions of the Honourable Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325] and Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] and contended that, since reverse onus of proof is on the accused as under Section 139 of the N.I.Act, the concurrent findings cannot be found fault with. 12. Is there any illegality, impropriety or irregularity in the judgments of the courts below. 13. Before I delve into the legality and correctness of the impugned judgments, this Court reminds itself of the scope and purport of the revisional jurisdiction under Secs.397 to 401 of the Cr.P.C. 14. There is a profusion of precedential authority that the revisional power of this Court is to be sparingly exercised and in exceptional rarity. The power is more in the nature of supervisory jurisdiction, to correct the miscarriage of justice, if any found. The revisional power cannot be equated with Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P1 cheque. His defence is that, as per Ext.D1 agreement, Binukumar was paid only Rs.50,000/- by the first respondent. 19. The Trial Court, invoking its power under Section 73 of the Indian Evidence Act, examined the signature of the first respondent in the vakkalath, complaint, her deposition and on Ext.D1 agreement, and arrived at a conclusion that Ext. D1 agreement was not executed by the first respondent. The Appellate Court also re-appreciated this aspect and arrived at the same conclusion. Thus, the courts below have concurrently found the fact that the first respondent had not subscribed to Ext.D1 agreement, which demolishes the defence set up by the revision petitioner. 20. It is to be remembered that Ext. D1 agreement was executed on 3.10.2001 and Ext.P1 cheque was issued merely after a year on 25.7.2002. 21. Indisputably, the revision petitioner has not sent any reply to Ext.P4 lawyer notice. Even though, he let in defence evidence through DWs1 and 2, the courts below have found that the said witnesses have no direct knowledge with respect to transaction. Furthermore, the revision petitioner has no clue regarding Binukumar, who is the main witness, who also has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these reverse onus clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243). 26. Similarly, in M/s.Shree Daneshwari Traders vs Sanjay Jain [2019 (4) KHC 495], the Hon ble Supreme Court has held as follows: 16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revision petitioner to pay a compensation of Rs.3,00,000/- to the first respondent and in default to undergo simple imprisonment for a period of six months. 33. In the result, (i) The revision petition is allowed in part. (ii) The conviction imposed by the Trial Court and confirmed by the Appellate Court stand confirmed. (iii) The substantive sentence stands modified as under: (a) The revision petitioner/accused shall undergo simple imprisonment for a day, (till the rising of the court), and to pay a compensation of Rs.3,00,000/- (Rupees three lakh only) and in default of payment of compensation, the revision petitioner shall undergo simple imprisonment for a period of six months. If the compensation amount is deposited, the same shall be released to PW1, in accordance with law. (b) Needless to mention, if the revision petitioner has already deposited any amount, as directed by the Appellate Court or this Court, only the balance amount need be remitted. (c) The revision petitioner is directed to appear before the Trial Court on or before 18.11.2023 to undergo the modified sentence and to pay the compensation amount. (d) In case of failure of the revision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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