2020 (9) TMI 593 - HC - Indian Laws

Revision case dismissed, upholding conviction, sentence & compensation. Default sentence imposed. Withdrawal of deposited amount allowed.

The Criminal Revision Case was dismissed, upholding the conviction and sentence of one year simple imprisonment and compensation of Rs. 4 lakhs, with a ... Offence under Section 138 of the Negotiable Instruments Act - presumption under Section 139 of the Negotiable Instruments Act - rebuttal of statutory presumption - dishonour of cheque for insufficiency of funds - scope of criminal revision under Section 397 r/w 401 CrPCOffence under Section 138 of the Negotiable Instruments Act - dishonour of cheque for insufficiency of funds - presumption under Section 139 of the Negotiable Instruments Act - rebuttal of statutory presumption - Whether the conviction under Section 138 of the Negotiable Instruments Act could be sustained on the evidence on record. - HELD THAT: - The Court applied the statutory presumption arising under Section 139 in the context of a cheque drawn for discharge of debt and considered whether the accused had rebutted that presumption. The material findings recorded by the trial and appellate Courts - receipt of Rs. 4 lakhs by the accused on 25.03.2012, issuance of the cheque, presentation on 26.03.2012 and its return for insufficient funds, service of statutory notice and its acknowledgment, and absence of payment within the statutory period - were accepted as proved. The complainant's bank statement (Ex.P6) was held sufficient to show available funds and the complainant's capacity to part with the amount; the accused did not seriously dispute the cheque or his signature and failed to substantiate the defence that the cheque was a blank cheque misused years earlier. The Court reiterated that the defence need only produce evidence creating a reasonable possibility that the presumption is untrue; here the accused's contentions were not proved to that standard and the lower Courts' concurrent findings did not suffer from illegality, perversity or impropriety warranting interference. [Paras 17, 19, 20]Conviction under Section 138 of the Negotiable Instruments Act is sustained; the revision petition is dismissed.Scope of criminal revision under Section 397 r/w 401 CrPC - Whether this Court should interfere in exercise of revisional jurisdiction to re-appreciate evidence. - HELD THAT: - The Court reiterated the limited scope of revision under Section 397 r/w 401 CrPC: interference is permissible only if there is illegality, perversity or impropriety in the findings of the trial or appellate Courts. Absent such jurisdictional defects, the Court will not act as a second appellate forum to reappraise the evidence. Applying this principle to the present record, the Court found no such defect in the concurrent findings which supported conviction. [Paras 17, 18, 20]No interference under revisional jurisdiction; the revision is dismissed.Effect of interim deposit on final relief - Disposition of the interim deposit made pursuant to earlier order of this Court. - HELD THAT: - The Court noted that pursuant to an earlier order staying sentence, the accused had deposited a sum directed to the trial court's credit. As the revision is dismissed, the Court permitted the respondent to withdraw the deposited amount and directed the trial Court to secure and confine the accused to undergo the sentence as imposed by the trial Court. [Paras 21]Respondent permitted to withdraw the interim deposit; trial Court to secure the accused for undergoing the sentence.Final Conclusion: The Criminal Revision is dismissed; the conviction and sentence under Section 138 of the Negotiable Instruments Act are upheld, the respondent is permitted to withdraw the interim deposit made to the trial Court, and the trial Court is directed to ensure execution of the sentence. Issues Involved:1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act.2. Validity of the cheque and its issuance.3. Misuse of blank cheques.4. Statutory notice and its compliance.5. Evidence and burden of proof.6. Scope of Criminal Revision under Section 397 r/w 401 CrPC.Detailed Analysis:1. Legally Enforceable Debt under Section 138 of the Negotiable Instruments Act:The primary issue revolves around whether there was a legally enforceable debt. The complainant alleged that the petitioner borrowed Rs. 4 lakhs and issued a cheque, which was dishonored due to insufficient funds. The petitioner disputed this, claiming the cheque was given as collateral for business transactions and misused by the complainant.2. Validity of the Cheque and Its Issuance:The petitioner argued that the cheque in question was issued in 2005 as a blank cheque and was misused in 2012. The court noted that while the cheque book was issued in 2005, there is no restriction on the time frame within which a cheque must be used. The petitioner did not deny the signature on the cheque, and the courts found the cheque valid and enforceable.3. Misuse of Blank Cheques:The petitioner claimed that the cheque was misused by the complainant. The court examined the evidence, including the petitioner's reply notice and the Bank Manager's testimony, which confirmed the issuance of the cheque in 2005. However, the court found no substantial proof from the petitioner to support the claim of misuse.4. Statutory Notice and Its Compliance:The complainant issued a statutory notice on 04.04.2012, which the petitioner acknowledged on 09.04.2012 but did not respond to within the statutory period. The petitioner’s reply came only on 08.06.2012, after the complaint was filed. The court found that the complainant complied with the statutory requirements under the Negotiable Instruments Act.5. Evidence and Burden of Proof:The court highlighted that under Section 139 of the Negotiable Instruments Act, there is a presumption that the cheque was issued for the discharge of a debt or liability. This presumption is rebuttable, but the petitioner failed to provide sufficient evidence to rebut it. The court referred to various judgments, emphasizing that the burden of proof on the accused is only by preponderance of probability, which the petitioner did not meet.6. Scope of Criminal Revision under Section 397 r/w 401 CrPC:The court reiterated that the scope of revision is limited to checking for illegality, perversity, or impropriety in the findings of the lower courts. It cannot re-appreciate evidence as a second appellate forum. The court found no such issues in the findings of the trial and appellate courts, which had both found the petitioner guilty.Conclusion:The Criminal Revision Case was dismissed, affirming the conviction and sentence of one year simple imprisonment and compensation of Rs. 4 lakhs, with a default sentence of three months simple imprisonment. The respondent was permitted to withdraw Rs. 1 lakh deposited by the petitioner during the revision proceedings. The trial court was directed to secure the petitioner to undergo the imprisonment period.