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TMI Blog2025 (1) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ult to undergo simple imprisonment for a period of one month. 3. The brief facts leading to the filing of the present case are that in the month of February, 2010, one Jeevan Kumar approached the respondent/complainant stating that he is running a business of chemicals in the name and style of M/S Kasan Varnisha and Paint Industries, Kasan Almora and that he is the sole proprietor of the firm. It is the case of the respondent that he had invested money to the tune of Rs. 20,00,000/- in M/S Kasan Varnisha and Paint Industries through Jeevan Kumar on the assurance of getting good returns. It is alleged that initially, the respondent did receive some profits in return, however, subsequently; the said Jeevan Kumar stopped returning any amount. It is alleged that thereafter in December 2012, Jeevan Kumar gave three post-dated cheques to be presented in the months of January - March, 2013. 4. It is alleged that thereafter upon presentation of one of the cheques for a sum of Rs. 3,00,000/- being cheque No. 502576 dated 30.01.2013, the same got dishonoured and returned unpaid with remarks "Stop Payment." Subsequently, upon the non-payment of the cheque amount by Jeevan Kumar, despite rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries, Kasan Prop. Jeewan Kum". It was noted that the alleged partnership deed furnished by the respondent was executed on 01.04.2010, and the said bank account was opened on 12.11.2010, that is, after the execution of the partnership deed. In view of the aforesaid, it was noted that the subject cheque was issued by the accused - Jeevan Kumar as a proprietor of the petitioner firm and not as a partner. 10. It was noted that while the accused - Jeevan Kumar contended that the cheque was never given by him, and the same was contended to be lost in the year 2013 for which a police complaint was allegedly filed but the accused failed to substantiate his defence. It was noted that the accused - Jeevan Kumar, in his statement under Section 313 of the CrPC, himself stated that he had repaid some money to the respondent by withdrawing it from his bank account and that he had receipts in that regard, however he failed to produce any such receipts. 11. The learned MM noted that as per the testimony of the Court witness, the cheque was presented, however the same was returned unpaid due to insufficient funds. It was noted that the said witness also duly acknowledged that the deposit slip p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses. It was noted that since the accused was not granted any opportunity to cross examine the court witnesses, their testimony could not be relied upon. 15. It was noted that the accused failed to lead evidence to show that the cheques were misused. The learned ASJ also considered the argument of the accused regarding there being no return memo to indicate the reason for dishonour of cheque. The learned ASJ however noting that regardless of the reason for dishonour of cheque, since the same was not honoured upon presentation, the accused could have been prosecuted against under Section 138 of the NI Act. It was noted that it was not in dispute that the cheque was presented to the bank, and since the complainant produced the cheque in Court, it can safely be said that the bank returned the cheque to the complainant, and the amount was not credited. 16. The learned ASJ further noted that even if the claim of the accused himself is taken that he had issued stop payment instructions to the bank, it was upon him to justify his actions and raise a defence. In that light, the learned ASJ upheld the conviction of the accused - Jeevan Kumar under Section 138 of the NI Act. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional proceedings as a second appeal by sitting in appeal over the challenged orders. The Hon'ble Apex Court in the case of State of Kerala v. Puttumana Illath Jathavedan Namboodiri : (1999) 2 SCC 452 discussed the scope of revisional jurisdiction and held as under: "5. ...... 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 reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the 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...." (emphasis supplied) 22. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieved to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it. 58. Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court. xxx xxx xxx 61. The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on the part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque." (emphasis supplied) 24. At the outset, since the execution and signature on the cheque is not disputed, presumption under Section 138 and 118 of the NI Act is raised against the petitioner and in favour of the respondent. 25. From a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513] xxx xxx xxx 44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case-(supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to prove his case against the petitioner. Such contentions, in the opinion of this Court, are fallacious in nature. 31. Since the signatures on the cheque were not disputed, the presumptions were raised against the petitioner under Section 139 and 118 of the NI Act. It was thus up to the petitioner to raise a probable defence on a preponderance of probabilities to contend that there existed no debt/liability in the manner as pleaded by the respondent. 32. Even if the petitioner's case is taken at the highest, even dishonouring of cheque due to "stop payment" instructions fall within the ambit of Section 138 of the NI Act. It is not mandated that the complainant also ought to provide the reason for dishonour of the cheque. It was noted that the petitioner had not disputed that the cheque had been deposited by the complainant in the bank. The only dispute raised was that there was no cheque return memo, and therefore, the dishonour of the cheque was not proved. 33. In that regard, it was noted that Section 146 of the NI Act did not mandate a specific mode in which intimation of dishonour of cheque ought to be provided by the bank. In that light, the learned ASJ rightly noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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