TaxTMI 
TaxTMI 
2023 (10) TMI 2
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....discharge of the debt. The cheque on presentation for collection, got dishonoured by Ext.P2 memo, due to 'insufficient funds' in the revision petitioner's bank account. Although the first respondent had issued Ext.P4 lawyer notice, which was served on the revision petitioner as evidenced by Ext.P6 acknowledgment card, the revision petitioner failed to pay the demanded amount. Hence, the revision petitioner committed the offence under Sec.138 of the N.I Act. 3. The first respondent had filed the complaint before the Trial Court, which was taken cognizance of by the learned Magistrate. The revision petitioner got himself enlarged on bail. On completion of the statutory procedural formalities contemplated under the Code of Criminal Procedure (in short, Cr.P.C.)', the complaint was posted for trial. Trial 4. The first respondent was examined as PW1 and Exts.P1 to P6 were marked through her. The revision petitioner examined two witnesses as DWs1 and 2 and Ext.D1 was marked through PW1. The statement of the revision petitioner was recorded under Section 313 Cr.P.C. Trial Court Judgment 5. The Trial Court, after analysing the evidence and materials on record, convicted the ....
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....tted that Ext.P1 cheque was issued on 25.7.2002 i.e., subsequent to Ext.D1 agreement, which was purportedly executed on 3.10.2001. The courts below, after evaluating Ext.D1 agreement under Section 73 of the Indian Evidence Act, have concurrently found that the same has not been executed by the first respondent. The factual appreciation may not be interfered with by this Court, as it is beyond the scope of the revisional powers of this Court. He further submitted that the revision petitioner has not sent any reply notice or mounted the box to substantiate his defence. The only flaw in the prosecution is that Ext.P1 cheque was signed and written in two inks. He drew the attention of this Court to the decisions of the Honourable Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325] and Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] and contended that, since reverse onus of proof is on the accused as under Section 139 of the N.I.Act, the concurrent findings cannot be found fault with. 12. Is there any illegality, impropriety or irregularity in the judgments of the courts below. 13. Before I delve into the legality and correctness of the impugned judgments, this ....
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....itioner's pivotal defence was that he had not borrowed any amount from the first respondent. Instead, it was their common friend one Binukumar, who borrowed an amount of Rs.50,000/- from the first respondent, and in discharge of the said debt, the revision petitioner had issued Ext.P1 cheque. Ext.D1 agreement purportedly executed between the revision petitioner, first respondent and Binukumar, establishes this aspect. Hence, the prosecution initiated against the revision petitioner is bad. 18. The revision petitioner does not dispute the execution and the issuance of Ext.P1 cheque. His defence is that, as per Ext.D1 agreement, Binukumar was paid only Rs.50,000/- by the first respondent. 19. The Trial Court, invoking its power under Section 73 of the Indian Evidence Act, examined the signature of the first respondent in the vakkalath, complaint, her deposition and on Ext.D1 agreement, and arrived at a conclusion that Ext. D1 agreement was not executed by the first respondent. The Appellate Court also re-appreciated this aspect and arrived at the same conclusion. Thus, the courts below have concurrently found the fact that the first respondent had not subscribed to Ext.D1 agree....
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.... circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the 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. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly....
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....nce the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. 25. Recently, a three-Judge Bench of the Hon'ble Supreme Court in Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declare the law on the point in the following terms: "14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243)." 26. Similarly, in M/s.Shree Daneshwa....
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....f the N.I. Act is more civil in nature, and the intention of the legislature is to provide the drawer of the cheque an opportunity to pay the debt, rather than incarcerating the accused in prison because it would serve no fruitful purpose, especially to the complainant. Therefore, the substantive sentence can always be limited to a minimum period, with an order to pay fine, and out of which the complainant can be paid compensation. 32. In the light of the above exposition of law, I am inclined to modify the sentence, by reducing it from 15 days to one day (till the rising of the court) and directing the revision petitioner to pay a compensation of Rs.3,00,000/- to the first respondent and in default to undergo simple imprisonment for a period of six months. 33. In the result, (i) The revision petition is allowed in part. (ii) The conviction imposed by the Trial Court and confirmed by the Appellate Court stand confirmed. (iii) The substantive sentence stands modified as under: (a) The revision petitioner/accused shall undergo simple imprisonment for a day, (till the rising of the court), and to pay a compensation of Rs.3,00,000/- (Rupees thr....