TaxTMI 
TaxTMI 
2023 (4) TMI 648
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.... passed by the learned ACJM-1, Rohru, District Shimla, H.P., whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the "Act"), convicted and sentenced him to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs. 13,50,000/- to the complainant. 2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned ACJM-1 Rohru, stating therein that in the month of October, 0218, accused had purchased 900 apple boxes at different rates @1177/- per box from him. He alleged that though total consi....
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....not complied with in its letter and spirit. Repeatedly, learned counsel for the petitioner stated before this court that petitioner is ready and willing to make the entire payment of compensation and as such, matter was adjourned on various dates. 6. Today, during the proceedings of the case, learned counsel for the petitioner states that petitioner is not coming forward to impart the instructions and as such, this Court may proceed to decide the case on its own merits. 7. Mr. Hemant Thakur, learned counsel representing the petitioner vehemently argued that judgment passed by the learned Sessions Judge, upholding the judgment/order passed by the learned trial court is not based upon proper appreciation of facts and as such, same is not su....
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....ce can be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence. 9. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that 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. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest....
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....ies. 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 defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the co....
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....aimed by the petitioner accused that no case could be registered against the petitioner under Section 138 of the Act, on account of dishonouring of cheque allegedly issued by him because same was issued by him to someone else, but same was misused by the complainant. While examining himself as DW-1, accused deposed that he issued the cheque to a Commission Agent Ram Kumar, but interestingly, aforesaid Ram Kumar never came to be examined. He also denied factum with regard to his having purchased apple crop from the complainant, though accused for the first time introduced name of Ram Kumar while making deposition before the court, but interestingly, no such suggestion ever came to be put forth to the complainant in his cross-examination, he ....
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....ath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality 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 ....