9911796707
TMI Blog2023 (10) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... bable defence. If he discharges the onus of proof and casts a doubt about the existence of a debt, then the prosecution has to fail. Thus, both Courts have failed to advert and discuss the oral testimonies of PW1 and DW1. Instead, the Courts have only discussed about Exts.P1 to P10 documents and concluded that the revision petitioner has not discharged the reverse onus of proof under Section 139 of the N.I. Act - there is no discussion regarding Ext.D1 reply notice, the statement of the revision petitioner u/s 313 of the Cr.P.C. and the testimonies of the defense witnesses and documents. The courts below have misread the materials on record and have perfunctorily concluded that the revision petitioner has committed the offence u/s 138 of N.I. Act, which is improper, irregular and illegal, and warrants interference by this Court - revision petition is allowed. - THE HONOURABLE MR. JUSTICE C. S. DIAS FOR THE PETITIONER : ADV SMT.C.S.SINDHU KRISHNAH FOR THE RESPONDENT : ADVS. SRI.SAJJU.S SRI.K.SHAJ SMT.S.SEETHA, PP ORDER The revision petitioner calls in question the legality and correctness of the judgment passed in Crl.Appeal No.20/2009 by the Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt judgment 6. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment, dismissed the appeal by confirming the conviction and sentence. 7. It is assailing the concurrent judgments passed by the courts below, the revision petition is filed. 8. Heard; Smt.Sindhu Krishna, the learned Counsel appearing for the revision petitioner; Sri.K.Shaj, the learned Counsel appearing for the 1st respondent and Smt.Seetha S., the learned Public Prosecutor appearing for the 2nd respondent-State. 9. Smt.Sindhu Krishna argued that the courts below have gone wrong in holding that the revision petitioner has committed the offence under Section 138 of the N.I.Act. She contended that the courts below have not appreciated Ext.P10 agreement, Ext.D1 reply notice and the oral testimonies of PW1 and DW1 in their proper perspective. According to her, PW1 has categorically admitted in his cross examination that the petroleum retail outlet was not transferred to the revision petitioner as agreed in Ext.P10 agreement. Therefore, there was no legally enforceable debt. Moreover, there is nothing on record to substantiate the role of the 1st respondent in Lakshmi Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose 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 CrPC 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 glaringly 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. 14. Now, coming back to the facts of the case at hand. 15. The complainant's case in Ext.P8 lawyer notice is that Exts.P1 and P2 are issued in discharge of a legally enforceable debt. In the complaint, the 1st respondent reiterated the allegation in the lawyer notice and averred that the cheques got disho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability . 21. A three-Judge Bench of the Hon ble Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of reverse onus , by holding thus: 18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material witnesses. Admittedly, PW1 also testified that Lakshmy Fuels is not functioning. 25. On going through the impugned judgments of the courts below, it is deciphered that both Courts have failed to advert and discuss the oral testimonies of PW1 and DW1. Instead, the Courts have only discussed about Exts.P1 to P10 documents and concluded that the revision petitioner has not discharged the reverse onus of proof under Section 139 of the N.I. Act. 26. There is no discussion regarding Ext.D1 reply notice, the statement of the revision petitioner u/s 313 of the Cr.P.C. and the testimonies of the defense witnesses and documents. Thus, I am of the definite view that the courts below have misread the materials on record and have perfunctorily concluded that the revision petitioner has committed the offence u/s 138 of N.I. Act, which is improper, irregular and illegal, and warrants interference by this Court. Thus, I allow the revision petition by remanding the matter back to the Appellate Court for fresh consideration, untrammelled by any observation made in this order. In the result, (i) The revision petition is allowed (ii) The impugned judgment passed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
