2023 (12) TMI 1235 - HC - Indian Laws

Petitioner fails to rebut Section 139 presumption for dishonoured cheque, conviction under Negotiable Instruments Act upheld

VIBIN MELEPPURAM Versus DENNY THOMAS, STATE OF KERALA

The Kerala HC dismissed a revision petition challenging conviction under the Negotiable Instruments Act. The petitioner failed to rebut the statutory ... Dishonour of Cheque - rebuttal of presumption - main reason asserted both for dislodging execution of Ext.P1 and lack of consideration is that the similarity of handwriting in it with that in Ext.X1. PW1 has no case that Ext.P1 was in the handwriting of the petitioner - HELD THAT:- The petitioner did not adduce any evidence. It is true that in order to rebut the presumption in respect of a cheque, the accused can rely on the evidence and materials submitted by the complainant. The only thing is that the accused must be able to substantiate his case by preponderance of probabilities. The case set up by the petitioner during the cross-examination of PWs.1 to 3 and also in his answers to the question put to him under Section 313(1)(b) of the Code is that the cheque was issued as a security in respect of the transactions between himself and the 1st respondent - Lack of signature of PW1 in two pages of Ext.P6 does not assume much importance since its execution is proved by the evidence of PW3 and it is in favour of the 1st respondent. It was after considering the aforesaid evidence in detail the courts below concurrently held that the petitioner failed to rebut the presumption available under Section 139 of the N.I. Act in respect of Ext.P1. The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. This Court is not expected to substitute the concurrent finding of the court below with a different view unless such findings are perverse and against the evidence - the revision lacks merits and liable to be dismissed - the revision petition is dismissed. Issues involved: Conviction under Section 138 of the Negotiable Instruments Act, 1881 and appeal for revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973.The judgment deals with the case where the petitioner was convicted for issuing a cheque without sufficient funds, leading to its dishonor under Section 138 of the Negotiable Instruments Act, 1881. The petitioner's appeal before the Sessions Court was dismissed, prompting a revision petition. The 1st respondent alleged that the petitioner issued a cheque for Rs.24 lakhs which bounced due to insufficient funds. Despite denial by the petitioner, evidence including witness testimonies and documents were presented to prove the accusation. The trial court found the petitioner guilty, a decision upheld by the appellate court. The petitioner argued that the execution of the cheque was not duly proved, citing similarities in handwriting between the cheque and a bank intimation. The petitioner's contention was that evidence lacked to prove the cheque was duly executed and supported by consideration.The legal arguments presented by both parties revolved around the execution of the cheque and the presumption under Section 139 of the N.I. Act. The 1st respondent contended that evidence, including witness testimony, was sufficient to prove the execution of the cheque, while the petitioner sought to rebut the presumption by questioning the handwriting similarities. Reference was made to the Supreme Court's decision in Bir Singh v. Mukesh Kumar emphasizing the liability of a person who signs a cheque unless evidence is adduced to rebut the presumption. The petitioner's case was that the cheque was given as security only, but the court held that the petitioner failed to rebut the presumption under Section 139 of the N.I. Act.The judgment highlighted the importance of evidence and the burden on the accused to substantiate their case by preponderance of probabilities. The courts below concluded that the petitioner failed to rebut the presumption under Section 139 of the N.I. Act regarding the cheque in question. The High Court, in its revisional jurisdiction, emphasized that its role is not to re-appreciate evidence but to ensure the legality, regularity, and propriety of the impugned order. Referring to previous decisions, the High Court upheld the concurrent findings of the lower courts, stating that they were well supported by evidence and not perverse. Consequently, the revision petition was dismissed based on the proper appreciation of evidence and lack of merits for challenge.