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TMI Blog2024 (10) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... of sentence recorded by learned trial Court. Since in the case at hand, factum of issuance of Cheques as well as his signatures thereupon never came to be refuted at the behest of accused, no illegality can be said to have been committed by both the Courts below while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, [ 2012 (12) TMI 106 - SUPREME COURT] , has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the Cheque in question neither raises a probable defence nor able to contest existence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 438 read with Section 442 of BNSS, 2023, lays challenge to judgment dated 01.11.2023, passed by the learned Sessions Judge, Mandi Division, District Mandi, Himachal Pradesh, Criminal Appeal No.60 of 2023, titled Kishori Lal Vs. Hans Raj, affirming judgment of conviction and order of sentence dated 21.07.2023/27.07.2023, passed by the learned Judicial Magistrate First Class, Chachiot at Gohar, District Mandi, Himachal Pradesh, in complaint No.256-I/2026/115-III/2016, whereby the learned trial Court while holding the petitioner-accused (hereinafter, accused ) guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the Act ), convicted and sentenced him to undergo simple imprisonment for a period of two months and pay compensation to the tune of Rs.1,10,000/- 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 month of April 2016, he had supplied hardware material to the accused amounting to Rs.80,000/-, who with a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments, this Court sees no reason to agree with Ms. Kiran Dhiman, learned counsel representing the petitioner that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference. 8. In the instant case, there is no specific denial, if any, on the part of the accused with regard to his having issued Cheques as well as his signatures thereupon, rather, in his statement recorded under Section 313 Cr.P.C., he admitted complainant to be his acquaintance as well as factum of his having purchased the material, but for less amount. He categorically deposed that he had issued blank Cheque as a security, which subsequently came to be misused by the complainant. However, to probablize the aforesaid defence, no cogent and convincing evidence ever came to be led on record at the behest of accused, as such, no illegality can be said to have been committed by the learned Appellate Court while upholding the judgment of conviction and order of sentence recorded by learned trial Court. Since in the case at hand, factum of issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 138can 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 creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cheques in question were issued as a security, but even if it is presumed that Cheques in question were 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 Cheques, if any, issued as a security can also be presented for encashment, if amount taken or promised to be repaid is not paid. 11. Hon ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under: 16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. Security in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality 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 evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 15. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power. 16. True it is that the Hon ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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