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TMI Blog2023 (10) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Accordingly, the courts below found the accused guilty, and convicted and sentenced him for the above offence - There are no error, illegality or irregularity in the conclusion arrived at by the courts below. Thus, the conviction imposed by the courts below is confirmed. In DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [ 2010 (5) TMI 380 - SUPREME COURT ] the Hon ble Supreme Court held that unlike other forms of crime, the punishment under Section 138 of the N.I. Act is not a means for seeking retribution, but is a means to ensure payment of money. Complainant s interest lies primarily in recovering the money rather than seeing the drawer getting incarcerated. In an offence under Section 138 of the N.I. Act, the compensatory aspect of the remedy should be given priority over the punitive aspect. Thus lenient view as regards substantive sentence can be taken, by sentencing the revision petitioner to undergo imprisonment for one day(till the rising of the Court) and pay compensation for the cheque amount, which would do complete justice to both sides - revision petition is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Aggrieved by the said judgment, the accused preferred Crl. Appeal No.898/2005 before the Appellate Court. 6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment confirmed the conviction and sentence passed by the Trial Court and dismissed the appeal. 7. It is assailing the concurrent judgments of the courts below, the present revision petition is filed. 8. Heard; Sri.Thomas Abraham, the learned counsel appearing for the revision petitioner; Sri.Rajit, the learned counsel appearing for the first respondent and Smt.Seetha.S, the learned Public Prosecutor appearing for the second respondent-State. 9. Is there any illegality, irregularity or impropriety in the judgments passed by the courts below? 10. Before proceeding to decide the revision petition, this Court reminds itself that the revisional power is to be sparingly exercised only for the purpose of correcting patent errors, manifest illegality and when there is misreading of records. Merely because a different view is possible on a reading of the records, this Court is not excepted to interfere with the conclusions of the facts finding courts. 11. Keeping the above principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the 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 compelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory lawyer notice. 18. The accused denied the allegation and has raised a defence that he has no business transaction with the complainant. Instead, Ext.P8 cheque was issued by him to DW1 to purchase computers. It was misutilising the cheque, the complainant filed the false complaint. 19. Ext.P14 document, which is not disputed by the accused, would establish that the complainant, the accused and DW1 had purchased a shop room in their joint names. This by itself shows that there was a business transaction between the parties. Thus, the defence of the accused that he does not know the complainant and had not issued Ext.P8 cheque to the complainant can only be accepted with a pinch of salt. 20. The courts below, after a threadbare analysis of the materials placed on record, have concurrently concluded that the accused had failed to shift the reverse onus of proof cast on his shoulders under Section 139 of the N.I. Act. Accordingly, the courts below found the accused guilty, and convicted and sentenced him for the above offence. I do not find any error, illegality or irregularity in the conclusion arrived at by the courts below. Thus, I confirm the conviction imposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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