2023 (8) TMI 343

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.... the hire purchase business. The revision petitioner stood as surety to the said transaction. According to the respondent No.1, the son of the revision petitioner defaulted the repayment of the loan and there was a due of Rs.50,805/-. When they requested the revision petitioner and his son to settle the dues, the revision petitioner issued Ext.P5 cheque to the respondent No.1 which on presentation was returned as dishonored with the endorsement 'payment stopped by the drawer'. After issuing Ext.P8 statutory notice under Section 138(b) of the N.I.Act, the prosecution was lodged at the Judicial First Class Magistrate Court -III, Thrissur (for short, 'the trial court'). The trial court after trial found the revision petitioner ....

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....P5 cheque. 5. The N.I.Act raises two presumptions, firstly in regard to the passing of consideration as contained in Section 118 therein and secondly, the presumption that the holder of a cheque received the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing a presumption under Section 139 of the N.I.Act exists, the court shall draw a presumption under the said Section, in which case the evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not would depend upon the facts and circumstances of each case. As stated alre....

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..... It has been consistently held by the apex court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. While exercising the revisional powers under Sections 397 r/w 401 of Cr.PC, the court is required to find out if there is any illegality or impropriety in the finding of the trial court and the appellate court warranting interference and it is not open to the High Court to exercise the revisional power as the second appellate forum (See State Of Maharashtra vs Jagmohan Singh Kuldip Singh Anand and others [2004 (7) SCC 659]). 7. Since there are concurrent findings of the two courts below, this Court would be circumspect in invoking the revisional powers under Se....