2022 (11) TMI 37 - HC - Indian Laws

Revision petition dismissed, accused given deadline to fulfill compensation & serve sentence. Execution postponed, enforcement possible.

The revision petition was dismissed, affirming the conviction and sentence imposed by the trial and appellate courts. The accused was granted two months ... Dishonor of Cheque - legally enforceable debt or not - opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced - Preponderance of probabilities - HELD THAT:- It is the settled law that in order to execute a decree, the decree must be one capable of execution and the terms thereof shall be sufficient to get the same executed. It is unexceptionable that a court executing a decree cannot go behind the decree; it must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made - In the case on hand, no final award passed and the prosecution also was not terminated at any point of time. Therefore, it cannot be held that the dispute was settled by passing a final award, having the trappings of a civil court decree under Section 21 of the Legal Services Authorities Act. Therefore, this contention cannot be appreciated. The law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities - It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In this case, the trial court sentenced the accused to pay a fine of Rs.4,00,000/- and in default of payment of fine, six months imprisonment was ordered. Fine was ordered to paid as compensation to the complainant under Section 357(1)(b) of Cr.P.C. - In the appeal, the appellate court modified the sentence by enhancing the fine amount to Rs.5,80,000/-. The concurrent verdicts of conviction as well as sentence imposed by the trial court do not require any interference at the hands of this Court and therefore, the revision must fail - this revision petition fails and it is, accordingly, dismissed. Issues Involved:1. Validity of the cheques under Section 138 of the Negotiable Instruments Act.2. Impact of the Lok Adalat award on the prosecution.3. Presumption under Sections 118 and 139 of the Negotiable Instruments Act.4. Scope of revisional jurisdiction under Sections 397 and 401 of the Cr.P.C.5. Appropriateness of the sentence and fine imposed by the trial and appellate courts.Detailed Analysis:1. Validity of the Cheques under Section 138 of the Negotiable Instruments Act:The accused issued two cheques for Rs.2,00,000/- each to the complainant, which were dishonored. The trial court secured the presence of the accused, and during the trial, the complainant provided evidence, including testimonies and documents (Exts.P1 to P6). The accused admitted issuing the cheques but claimed they were blank signed cheques given as security, arguing that the amount was repaid with interest. However, no defense evidence was adduced to support this claim.2. Impact of the Lok Adalat Award on the Prosecution:The accused argued that the cheques were issued as per an award passed before the Lok Adalat, which should be treated as a decree under Section 21 of the Legal Services Authorities Act. However, the court noted that the award included a clause allowing the complainant to proceed with the complaint in case of non-payment, indicating that the award was not final. Thus, the prosecution could continue.3. Presumption under Sections 118 and 139 of the Negotiable Instruments Act:The courts below relied on the presumption under Sections 118 and 139 of the N.I Act, which favors the complainant once the initial burden of proving the transaction is met. The accused's admission of issuing the cheques shifted the burden to him to rebut the presumption, which he failed to do. The Supreme Court precedents, including Rangappa v. Sri.Mohan and Bir Singh v. Mukesh Kumar, affirm that the presumption includes the existence of a legally enforceable debt or liability unless rebutted by the accused.4. Scope of Revisional Jurisdiction under Sections 397 and 401 of the Cr.P.C:The court emphasized that revisional jurisdiction is supervisory and not equivalent to appellate jurisdiction. It is meant to correct miscarriages of justice, not to re-appreciate evidence. The court cited precedents, including State of Kerala v. Puttumana Illath Jathavedan Namboodiri and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, to highlight that interference is warranted only in cases of perverse or unreasonable findings or non-consideration of relevant material.5. Appropriateness of the Sentence and Fine Imposed:The trial court sentenced the accused to pay a fine of Rs.4,00,000/- with six months imprisonment in default, which was enhanced to Rs.5,80,000/- by the appellate court. The court referred to R.Vijayan v. Baby and Another, which directs courts to levy fines up to twice the cheque amount, considering interest at a reasonable rate. The appellate court's decision to increase the fine was deemed appropriate and consistent with the principles of restitution and uniformity in similar cases.Conclusion:The revision petition was dismissed, upholding the concurrent verdicts of conviction and sentence by the trial and appellate courts. The accused was given two months to pay the compensation and undergo the sentence, with a directive to appear before the trial court on 31.12.2022. The execution of the sentence was deferred until 30.12.2022, with instructions to the trial court to execute the sentence if the accused failed to comply.