2023 (9) TMI 405 - HC - Indian Laws

Conviction upheld for dishonored cheque under Section 138 of Negotiable Instruments Act with modified sentence

BRITTO. K.V Versus BASTIN. K.J, STATE OF KERALA

The accused was convicted under Section 138 of the Negotiable Instruments Act for issuing a dishonored cheque. The conviction and sentence of one year of ... Dishonour of Cheque - suppression of material facts - details of the transaction are not stated either in the notice or in the compliant - HELD THAT:- The law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, 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 had 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 court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is nonconsideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. In fact, nothing substantiated in this revision petition to interfere with the concurrent findings of conviction. However, the sentence requires modification to ensure payment of the cheque amount. The conviction imposed by the Courts below stands confirmed. Consequently, the accused is sentenced to undergo simple imprisonment for a day till raising of the Court and to pay fine of Rs.10,00,000/-. Fine, if realized, the same shall be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of eight months - this revision petition succeeds in part and is accordingly allowed in part by modifying the sentence. Issues Involved:1. Legality of conviction under Section 138 of the Negotiable Instruments Act.2. Adequacy of evidence and presumption under Sections 118 and 139 of the N.I. Act.3. Scope of revisional jurisdiction under Sections 397 and 401 of Cr.P.C.4. Modification of sentence.Summary:Legality of Conviction:The accused was prosecuted under Section 138 of the Negotiable Instruments Act for issuing a cheque of Rs.10,00,000/- which was dishonored due to 'fund insufficient.' The trial court convicted the accused, sentencing him to one year of simple imprisonment and a fine of Rs.10,00,000/-, which was to be paid as compensation to the complainant. This conviction and sentence were confirmed by the Additional Sessions Judge-II.Adequacy of Evidence and Presumption:The complainant provided evidence through PWs 1 and 2, along with Exts.P1 to P9. The accused did not provide any defense evidence. The courts below relied on the twin presumptions under Sections 118 and 139 of the N.I. Act, which favor the complainant. The evidence presented was deemed sufficient to establish the accused's liability. The court cited several precedents, including Rangappa v. Sri.Mohan and Bir Singh v. Mukesh Kumar, affirming that the presumption includes the existence of a legally enforceable debt or liability.Scope of Revisional Jurisdiction:The court emphasized the limited scope of revisional jurisdiction under Sections 397 and 401 of Cr.P.C., which does not allow re-appreciation of evidence unless there is a glaring miscarriage of justice. The court referred to State of Kerala v. Puttumana Illath Jathavedan Namboodiri and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, highlighting that revisional power is supervisory and not equivalent to appellate jurisdiction.Modification of Sentence:The court found no substantial reason to interfere with the concurrent findings of conviction but modified the sentence to ensure payment of the cheque amount. The accused was sentenced to undergo simple imprisonment for a day till the rising of the court and to pay a fine of Rs.10,00,000/-. In default of payment, the accused would undergo imprisonment for eight months. The accused was granted three weeks to pay the fine and surrender before the trial court.Order:The revision petition was allowed in part, modifying the sentence while confirming the conviction. The accused was directed to surrender before the trial court on 12.09.2023, with the execution of the sentence deferred until 11.09.2023. A copy of the order was directed to be forwarded to the trial court for compliance.