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TMI Blog2023 (10) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant, and during that time, the accused and her husband deposited amount in Prana Charitable Trust - The complainant filed the case misusing the cheque issued as a security by writing the amount and date in that cheque. The complainant is not entitled to get any amount from the accused. The accused are not liable to pay compensation or interest to the complainant. The conviction imposed by the trial court and confirmed by the Appellate Court does not require any interference. Coming to the sentence, the same also is very reasonable and the same also does not require any interference - Revision petition dismissed. - HONOURABLE MR. JUSTICE A. BADHARUDEEN For The Appellants : By Advs. C.S. Manu, Sri. S. K. Premraj For The Respondents : By Advs. Shri. Maneesh Narayanan, Sri. S.R. Sunjith, Sr PP - K Denny Devassy ORDER This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioners are the accused in S.T. No. 2278/2016 on the files of the Court of Special Judicial First Class Magistrate (N.I. Act Cases), Kozhikode and the appellants in Crl.A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, no witness examined on the side of the accused, but Ext. D1 marked on the side of the accused. 7. On appreciation of evidence, the trial court convicted and sentenced the accused as under: In the result, the first accused is convicted and sentenced u/s 255(2) of the Code of Criminal Procedure to pay fine of Rs. 1000/- (Rupees One Thousand Only) and the second accused is convicted and sentenced to pay a fine of Rs. 9,50,000/- for offence under section 138 of the Negotiable Instruments Act. In default of payment of fine, the second accused shall undergo simple imprisonment for a period of 5 (Five) months. The fine amount realised from the accused shall be paid to the complainant as compensation u/s. 357 (1) (b) of Code of Criminal Procedure. 8. Although, the accused challenged the conviction and sentence imposed by the trial court, before the Sessions Court, Kozhikode, the learned Sessions Judge also confirmed the conviction and sentence imposed by the trial court, as per judgment in Crl.A. No. 176/2019 dated 16.09.2019. 9. Challenging the concurrent verdicts of conviction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and drawee as defined under Section 7 of the N.I. Act and also the definitions of the words acceptor , acceptor for honour and payee in paragraph No.28 of the judgment and observed as under: 28. To add strength to the above conclusion, we may also look into the term 'drawer' in Section 7 of the Act, which reads as follows: 7. Drawer The maker of a bill of exchange or cheque is called the drawer; the person thereby directed to pay is called the drawee. Drawee in case of need, When in the bill or in any endorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a drawee in case of need . Acceptor After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such parts, and delivered the same, or given notice of such signing to the holder or to some person on his behalf he is called the acceptor. Acceptor for honour. --- When a bill of exchange has been noted or protested for nonacceptance or for better security, and any person accepts is supra protest for honour of the drawer or of any one of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the 2nd respondent placed decision of the Bombay High Court (Aurangabad Bench) in The Dadasaheb Rawal Co-op. Bank of Dondaicha Ltd v. Ramesh and others in Criminal Revision Application No. 239 of 2006, the Bombay High Court opined that a plain reading of the expression company as used in sub-clause(a) of the Explanation is that it is inclusive of any body corporate or other association of individuals . The term association of individuals will include club, trust, HUF business, etc. It shall have to be construed ejusdem generis alongwith other expressions company or firm . 18. Another decision of the Gujarat High Court in Shah Rajendrabhai Jayantilal v. D.Pranjivandas and sons Prop. Dhirajlal Pranjivandas Popat [R/SCR.A/1970/2015] also has been placed where the learned Single Judge addressed the same issue and held as under: The issue raised in this application prima facie appears to be squarely covered by a decision of the Supreme Court in the case of Anita Handa vs. M/s. Godfather Travels Tours Pvt Ltd, [2007(11) SCC 297 , wherein the Supreme Court has taken a view that if the company is not impleaded as accused, the complaint R/SCR.A/1970/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary and not use this principle where it is not necessary so as to defeat the purpose of the statute and to cause miscarriage of justice are the conditions to be satisfied. Thus, it appears that the High Courts of Madras, Bombay and Gujarat correctly interpreted the various provisions and the law emerges from the said judgments are as under: (i) The expression company used in sub-clause (a) of explanation appended to Section 141 of the N.I. Act includes any body corporate or other association of individuals and the term association of individuals to be interpreted by applying the principle of ejusdem generis. To be construed so, the term association of individuals will include club, trust and Hindu undivided family business along with the expression company or firm . (ii) A Trust, either private or public/charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable under Section 138 of the Negotiable Instruments Act. (iii) A Trust, either private or public/charitable or otherwise, having either a single trustee or two or more trustees, is a company in terms of Section 141 of the Negotiable Instruments Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed/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. Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 24. In the decision reported in [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v. Mukesh Kumar , the Apex Court while dealing with a case where the accused has a contention that the cheque issued was a blank cheque, it was held as under: A meaningful reading of the provisions of the Negotiable Instruments A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that: Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S. 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 26. The learned counsel for the accused/revision petitioners argued further that the complainant failed to prove the execution and issuance of Ext. P1 cheque by the accused and also the pleadings in the complaint and testimony of PWs 1 and 2 are contradictory in nature. Though, this contentions were raised before the Courts below, the Courts below negatived the same, relying on the evidence of PWs 1 and 2 and Exts. P1 to P13 and thereby the benefit of twin presumptions under Sections 118 and 139 of the N.I. Act was adjudged in favour of the complainant. 27. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C. r/w Section 397, which is not wide and exhaustive to re-appreciate the evidence to have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaring unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. 29. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], Kishan Rao v. Shankargouda. Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, 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 had already been appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the complainant demanded more amount as interest. The complainant and husband are not entitled to get any interest. The complainant filed the case misusing the cheque issued as a security by writing the amount and date in that cheque. The complainant is not entitled to get any amount from the accused. The accused are not liable to pay compensation or interest to the complainant. 32. In fact, the evidence available would go to show that the 2nd accused herein admitted receipt of Rs. 19,50,000/- and in order to discharge the said sum, two cheques were issued. One cheque issued bearing No. 101616 for Rs. 10,00,000/- was encashed and Ext.P1 cheque dated 03.04.2013 issued for Rs. 9,50,000/- was dishonored. Thus the transaction and issuance of the cheque, in fact is admitted rather proved by the complainant. In such a case, it is the bounden duty of the accused to rebut the presumptions. In fact, in the case at hand no evidence is available to see the rebuttal. 33. Apart from the above contentions, nothing substantiated by the learned counsel for the accused/revision petitioners to revisit the concurrent verdicts of conviction and sentence. 34. Therefore, the conviction imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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