TaxTMI 
TaxTMI 
2022 (1) TMI 557
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....tion to the respondent-complainant (hereinafter, 'complainant') 2. Precisely, the facts of the case, as emerge from the record, are that complainant instituted a complaint under S.138 of the Act alleging therein that he had advanced sum of Rs. 1,00,000/- to the complainant, who with a view to discharge his liability issued cheque No. 831354 dated 1.8.2010 (Ext. CW-1/A) for Rs. 1,00,000, However, the fact remains that the cheque on its presentation was dishonoured with the endorsement, "exceeds arrangement" vide memo, Ext. CW-2/A. After having received memo from the bank concerned, complainant served accused with a legal notice Exhibit CW-3/A, calling him to make good the payment within the time stipulated in the notice, but since accused failed to make good the payment within the stipulated in the legal notice, complainant filed complaint under S.138 of the Act in the competent court of law. On the basis of evidence collected on record by respective parties, learned trial Court held petitioner guilty of having committed offences punishable under S.138 and convicted and sentenced him as per description given herein above. 3. Being aggrieved and dissatisfied with judgment of convic....
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....issued two cheques in the sum of Rs. 1 Lakh, drawn on State Bank of India, Sundernagar and one cheque amounting to Rs. 1,00,000/- (Ext. CW-1/A) drawn on State Bank of India, Sundernagar. He deposed that two cheques were issued in July, 2010 and August, 2010. He deposed that he presented all these cheques for encashment to State Bank of India, Sundernagar, which were sent to the banker of the accused but the same were dishonoured with the observation that account of the accused stands closed. Complainant also deposed that he after having received memo from bank concerned, served legal notice upon the accused through registered post. Postal receipt is mark C and acknowledgement is mark D, but since accused despite service of legal notice, failed to make the payment, complainant was compelled to file complaint under S. 138 of the Act. Cross-examination conducted upon this witness clearly reveals that the cheque in question was issued by the accused. This witness in cross-examination stated that he had given money to the accused as he was father of his friend. This witness denied that the accused returned the money. He also denied that the blank cheque was issued as a security by the a....
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....bable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. 12. Once issuance of cheque and signatures thereupon are not denied, presumption starts in favour of holder of cheque and once such presumption starts, onus shifts upon the person issuing the cheque. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, wherein, it has been held as under: "18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting....
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....sed. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature." 19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under: "I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in the cheques of the accused lying with me by making obstinate wr....
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....e account of which is 40007. Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me." 19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post- dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard this writing from consideration. 19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, it bears the signatures of said Shri Jagdishbhai. We fi....
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....owever, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities. 24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defe....
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....egality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, 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 has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 15. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. 16. True it is that the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a f....