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TMI Blog2024 (10) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... .3,00,000/- to the respondent-complainant. 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, 'complainant') instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that in the first week of March 2017, he had advanced loan of Rs.2,00,000/- to the accused, with whom he had prior acquaintance, for his urgent and personal/domestic needs. He alleged that accused with a view to discharge his aforesaid liability, issued Cheque bearing No.696306 dated 17.04.2017, for a sum of Rs.2,00,000/-, drawn on UCO Bank, Rohru (Ex.CW1/B), however, on its presentation to the Bank concerned, the same was dishonoured vide returning memo Ex.CW1/C with the remarks "Funds Insufficient". After receipt of aforesaid return memo, complainant served accused with a legal notice (Ex.CW1/D) through registered post, however, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposed that he had borrowed Rs.1,00,000/- in the year 2012 and sum of Rs.1,00,000/- in the year 2013, but in discharge whereof, he had paid sum of Rs.2,00,000/- on 30.06.2015, Rs.3,00,000/- on 30.09.2015 and sum of Rs.3,00,000/- on 30.11.2015. He deposed that sum of Rs.8,00,000/- in total has been paid to complainant qua which he later issued receipt Mark- DX1. He deposed that complainant misused the aforesaid Cheque. If the statement of accused as DW-1 is perused in its entirety, it can be safely inferred that he fairly admitted factum with regard to his having issued the Cheque in question, may be as a security. Though, accused attempted to carve out a case that though he had taken loan of Rs.2,00,000/- from the complainant, but he was made to pay sum of Rs.8,00,000/-, which was paid to complainant in three installments. With a view to prove factum with regard to payment of aforesaid sum of Rs.8,00,000/-, accused relied upon receipt Mark-DX1, which was sent for examination to FSL along with specimen signature of complainant, but result of the same was not found to be conclusive insofar as the expert was not able to express any definite opinion as to the writing and questioned s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 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 money 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 defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities. 24. Therefore, if the accused is able to establish a probable defence which create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid sum of Rs.8,00,000/- against sum of Rs.2,00,000/-, but since there is no mention, if any, of the Cheque in question on the receipt Mark DX1, adduced on record by the accused to prove factum with regard to his having repaid entire amount, Courts below rightly held accused guilty of his having committed offence punishable under Section 138 of the Act. Complainant successfully proved on record that accused with a view to discharge his liability issued Cheque in question qua the amount paid by him in the month of March, 2017, however, same on its presentation to the Bank concerned was dishonoured vide return memo Ex.CW1/C. He also proved on record that before initiating proceedings under Section 138 of the Act, he served accused with legal notice, but despite service, neither accused returned the money, nor he replied to the legal notice. Though, there is no evidence worth credence suggestive of the fact that Cheque in question was issued as a security, but even if it is presumed that Cheque in question was issued as a security, that may not be of much help to the accused for the reason that by now it is well settled that Cheque, if any, issued as a 'security' can also be present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties. 14. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-appreciate the evidence, especially in view of the concurrent findings of fact and law relied upon by the Courts below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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