TaxTMI 
TaxTMI 
2015 (1) TMI 1365
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....ement of the said loan on overdraft, the accused issued cheques to discharge the respective dues and the same were dishonoured endorsing 'funds insufficient' on 06.08.2004 and 31.08.2004 respectively, that after issuing the statutory notice respectively the Complainant presented two complaints against both the accused. The cases were taken on file against both the accused under Section 138 of the Act and the accused were examined under Section 251 Cr.P.C., for which they pleaded not guilty and claimed for trial. After examination of the witness P.W-1 on behalf of the complainant and after perusal of the respective documents marked on behalf of the complainant, since no documents marked on behalf of the accused nor examined any witness on behalf of the accused, the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam passed Judgments in both the cases on 18.09.2007 respectively holding that A-1 and A-2 found guilty for the offence under Section 138 of the Act and convicted them under Section 255(2) of Cr.P.C. and sentenced them to undergo simple imprisonment for three months in both the cases respectively and also directed to pay compensation of Rs. 10,000/- an....
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.... show that he has discharged the debt, that the revision Court below failed to note that a mere non-mentioning of the execution of pronote and revival letter in the complaint or statutory notice cannot be a ground for acquitting the accused by reversing the conviction judgments, that the revision Court below failed to note that the admission of loan transaction by the accused and his failure to come to witness box to prove his contention of the cheque was not signed by him or he signed the blank cheque that the revision Court below should have seen the presumptions under Section 139 read with Section 118 of the Act goes to show that the holder or payee of cheque received the cheque in discharge in whole or in part of legally enforceable debt or liability, that the revision Court below failed to note the cardinal principle of law that when once the complainant has proved that there is an existence of legally enforceable debt by filing Exs. P-1 to P-6, it is for the accused to rebut the same that he has not been discharged by accused to rebut and thereby sought to set aside the acquittal judgment and prayed to convict the accused by allowing the appeal. The learned counsel reiterated....
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....is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latter's unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations - GOA PLAST (PVT.) LTD. v. CHICO URSULA D'SOUZA AIR 2003 SC 2035. 8-(C). To fulfill the objective, the Legislature while amending the Act has made the following procedure: In the opening words of the Section 138 it is stated: "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, ----------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Sec. 143), be punished ----. Provided, nothing contained in this section shall apply unle....
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....e Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man". 9-B. The presumption that further applied among clauses (a) to (g) of Section 118 of N.I. Act also, like the presumption under Section 139 of the Act, as per Section 4 of the Evidence Act, is a rebuttable presumption for which the burden is on the accused, however, to rebut the presumption if a case is made out by accused either by pointing out from t....
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.... made out in discharge of the burden. It was concluded referring to the above, including of MALLAVARAPU KASIVISWESWARA RAO v. THADIKONDA RAMULU FIRM & ORS. AIR 2008 SC 2898 paras-14 and 15 that the initial presumption lays in favour of the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. While Section 138 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions and the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused cannot be expected to discharge an unduly high standard or proof and in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden to discharge by preponderance of probabilities by raising creation of doubt about the e....
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.... reason) that, Section 378 Cr.P.C. deals with right of appeal (in general) in case of acquittal, whereas proviso to Section 372 Cr.P.C. specially deals with right of victim even in case of acquittal. 10-B. Among Chapter XXIX Cr.P.C. dealing with appeals under Section 372 to 394 Cr.P.C., as per Section 372 Cr.P.C. prior to the proviso inserted enabling the victim to prefer an appeal supra, it speaks no appeal shall lie from any judgment or even an order of a criminal Court expect as provided for by this Code or by any other law for the time being in force. Thus, the statutory right of appeal prior to the remedy provided by proviso to Section 372 Cr.P.C. with effect from 31.12.2009, is to be governed by any of the specific provisions of the said chapter XXIX as on the date of filing the appeal. The trial Court's conviction Judgments are no doubt not on plea of guilty, but on contest; thereby Section 375 Cr.P.C. has no application, equally Section 373 Cr.P.C. for not against any security proceedings. 10-C. Coming to Section 374 Cr.P.C. particularly from sub-section (3), where the accused convicted on a trial held by Metropolitan Magistrate or Assistant Sessions Judge or Magi....
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....f Session against the conviction judgment of Metropolitan Magistrate, appeal is a bar from combined reading of Section 399 and 401 Cr.P.C. referred supra. From said reading of Section 376 Cr.P.C. with Section 374 Cr.P.C. (referred supra) it is only the revision was maintainable and maintained before the Court of Sessions. 10-E. When such is the case, now coming to the maintainability of appeal against said revision orders or even to take the same as revision (by exercising the inherent power under Section 482 Cr.P.C.) the revision against an order covered by revision of the lower Court is a bar by virtue of Section 397(3) Cr.P.C. and the law is also clarified by the Three Judge Bench expression of the Apex Court in Krishnan V. Krishnaveni (1997) 4 SCC 247. 11. Thus, once there is a bar for second revision, it is to consider if appeal won't lie, whether to decide as a proceeding under Section 482 Cr.P.C. 11-A. From this, now coming back to Chapter XXIX Cr.P.C., Section 378 Cr.P.C. which is with six sub-sections, the scope of which including the amendment to sub-section (1) to (3) by amended Act 25 of 2005 were considered by the expression of the Apex Court in Subhash Ch....
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...., against an order of acquittal passed by revision Court also in a case outcome of private complaint case, an appeal lies to the High Court. In that way according to the contention of the learned counsel for the appellants in the two appeals, the appeals against the revision, acquittal orders of the Sessions Judge by setting aside the conviction judgments of the trial Court, are prone to appeal and the appeals are maintainable. 12. It is otherwise by virtue of Section 372 proviso by amended Act 5 of 2009 the wording as 'provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for lesser offence or imposing inadequate compensation and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. Though it is the contention of the learned counsel for the appellants that these appeals otherwise maintainable by virtue of Section 372 Cr.P.C. as per the amended proviso by Act 5 of 2009, no doubt said provision provides right of appeal from judgment or order of a criminal Court to a superior Court, where ordinarily appeals lies against it. It is f....
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....9;s conviction judgment in acquitting the accused; then this Court's inherent power to decide the case by invoking Section 482 Cr.P.C. is there. 13. It is important to note in this context from the expression in Krishnan (supra) referring to Section 397 read with Sections 401 and 483 and also Section 482 Cr.P.C. that; though a second revision before High Court against the revision orders of the Sessions Court impugning the order of any Magistrate, under Section 397(3) is a bar, the inherent power of the High Court is still available under Section 482 Cr.P.C. to proceed with the matter in accordance with the requirements of justice. It was observed that besides the suo motu power of the High Court under Section 401 Cr.P.C. to convert the appeal as revision and vice-versa including by invoking Section 482 Cr.P.C. or to sit against the impugned order in revision either under Section 483 Cr.P.C. or even under Section 482 Cr.P.C. Where it is found that miscarriage of justice or abuse of process of the Court or required statutory procedure not been complied with or the order passed or sentence imposed requires correction, it is but the duty of the High Court to have it corrected b....
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....n that matter before it under Section 482 Cr.P.C. by sitting against the order impugned of any authority or Court to which it is superior. 13-C. Further more, in the later expression in Mohit @ Sonu Vs. State of U.P. AIR 2013 SC 2248, the Apex Court referred the settled expression of Madhu Limaye (supra) besides the expression earlier to it in Amarnath Vs. State of Haryana AIR 1977 SC 2185 : (1977) 4 SCC 137 saying the orders which are not purely interlocutory in nature and which could be corrected in exercise of revisional power, the High Court would refuse to exercise inherent power; but where if revision is not maintainable, the High Court can exercise inherent powers; to exercise inherent power, the order clearly brings a situation of abuse of process of the Court or for securing ends of justice or interference is absolutely necessary. It also referred Rajkumar Vs. State 1980 (1) SCC 43 in distinguishing the power of revision and inherent power of the High Court in holding that none of the Cr.P.C. provisions will affect the amplitude of the inherent power reserved in the High Court by Section 482 of Cr.P.C. but for inherent power should not invade the area set apart for spec....
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....ugar Mills Vs. Union of India 1976-1-SCR-803 holding that, though there are limitations on the powers of the Court, it cannot abandon its inherent powers. The inherent power has its roots in necessity and its breadth is coextensive with the necessity and in 2) South Eastern Coal Fields Ltd. Vs. State of M.P. 2003 (8) SCC-648 at paras-27 & 28 page-664 holding that act of court does not confine to act of primary court, but even appellate or revisional or other superior court, as it is an act of court as a whole. In Popular Muthaiah (supra) it is also held referring to the scope of the Maxim actus curiae neminem gravabit-that this principle is not confined to erroneous act of court, but is applicable to all acts which the court would not have passed if correctly appraised of the facts and the law. 13-F. It is also in this juncture to mention the expression of the Apex Court in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra AIR 2011 SC 1137 relying upon the Full Bench expression of Allahabad High Court in Rajnarayana Saxena Vs. Bhimsen AIR 1966 Allahabad 84 which relied upon the earlier Full Bench expression of the Allahabad High Court in Narsing Das Vs. Mangal Dubey ILR 5 Allahab....
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....15. Thus, the inherent power of the Court which inheres in it, enables to decide the appeals otherwise under Section 482 Cr.P.C. by sitting against the revision reversal and acquittal Judgments (orders), reversing the trial Court's conviction judgment against the two accused persons on the two private complaint cases maintained by the present appellant-complainant bank. 16. From the above, since the two matters can be decided by this Court under Section 482 Cr.P.C., if not as appeals under Section 372 Cr.P.C. as answered supra; now coming to the legality and correctness of the impugned reversal revision orders of the Court of Session by sitting against the cases covered under Section 138 of the Act from the scope of law under Section 138 of the Act discussed supra, coming to the further facts, save those that are referred in the earlier paras even at the cost of repetition, where required, Ex. P-1 is the respective cheques in the two cases that were routed from the account of the accused i.e., M/s. Subbaiah Gas Agency represented by Sri S. Prasada Rao proprietor concerned and said Prasada Rao again in his individual capacity though the proprietor and the proprietary concern ....
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....t held that the inefficiency in drafting the notice or the complaint or the non-mention of the particulars of the pronote with revival for which the cheque issued by themselves not fatal. It is in fact not the case of the accused persons that the cheque was not routed from their account. They failed to explain how the cheque leaf from the account of the accused, but for issued by the accused to the complainant bank, came to the custody of the complainant bank as held by the Apex Court in Rangappa supra to draw inference against the accused therefrom also of cheque duly issued. P.W.-1 Manager of the Complainant Bank deposed that the accused persons borrowed secured overdraft for Rs. 2,00,000/- from complainant bank by depositing the title deeds of the house property of 3rd accused and created equitable mortgage and agreed to repay the loan with interest that is covered by the pronote that was even revived latter to save limitation, failed to pay and for demands issued the respective Ex. P-1 cheques. In the cross-examination he deposed that, the complainant bank is in custody of the pronote as well as the revival letters executed by the accused for the borrowal and denied the suggest....
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....al Court rightly arrived. In fact in sitting against the said conviction judgment of the trial Court by the learned Sessions Judge under Section 397 Cr.P.C., there is nothing to interfere. Here, the scope of revision is different from the scope of appeal. So far as the revision concerned, the revisional jurisdiction under Section 397(1) is to exercise in sitting against correctness, legality or proprietary of any finding, sentence or order recorded or passed as to the regularity of the proceeding of the inferior Court by calling for records. There is nothing impropriety or illegality on the part of the trial Court in the conviction judgments muchless on the sentence, for the lower revisional Court by sitting in revision against it to reverse the conviction judgments and the sentence at the instance of the accused persons 1 and 2 that is proprietary concern and the proprietor who are one and the same as referred supra. However, the revisional Court in reversing the conviction judgment and sentence observed in para No. 6 that the main grievance of the accused impugning the trial Court's conviction judgment is, there is ill appreciation of evidence despite burden on complainant to....
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....he Section 482 Cr.P.C., for this Court to set aside the said revision Court reversal judgments to secure ends of justice being necessary. Accordingly, point No. 1 is answered. 17. In the result, the two appeals taken under Section 482 Cr.P.C. from otherwise if not maintainable either under Section 378(4) or under Section 372 amended Cr.P.C. and the lower revision Court's acquittal judgments are set aside by restoring the trial Court's conviction judgments; it is however by modifying the sentence of three months simple imprisonment with fine of Rs. 5,000/- to sentence of imprisonment till raising of the day by giving set off of the period of imprisonment undergone, if any, for the said day under Section 428 Cr.P.C. and by imposing fine of Rs. 3,20,000/- of which Rs. 3,00,000/- towards the cheques value viz., the Ex. P-1 cheque value of Rs. 2,00,000/- in C.C. No. 41 of 2005 (Crl.R.C. No. 90 of 2007) and Ex. P-1 cheque value of Rs. 1,00,000/- in C.C. No. 420 of 2005 (Crl. R.C. No. 91 of 2007) shall go as compensation to the complainant and the remaining Rs. 20,000/- as fine (at Rs. 10,000/- in each case) to the State by directing the accused Prasada Rao (Proprietor of Propr....