TaxTMI 
TaxTMI 
2025 (6) TMI 1005
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....short NI Act") read with Section 141 of the NI Act. It was asserted that the complainant is a horticulturist. He sends his apple produce for sale to various markets on a commission basis. M/s. Skyline Fruit Marketing is owned by Sanjay Rajta and Ajay Shyam. The complainant sent consignments of best-quality apple cases for sale to the Firm. The accused sold the apple at throwaway prices. The accused was liable to pay an amount of Rs.2,61,994/- to the complainant. The accused issued a cheque in favour of the complainant drawn at UCO Bank, Dhalli. The complainant presented the cheque before his Bank, but it was dishonoured due to insufficiency of funds on 09.12.2013. The complainant contacted the accused and apprised him about the dishonour of the cheque. The accused issued another cheque in favour of the complainant on 20.03.2014. This cheque was dishonoured with the endorsement "insufficient funds". The accused issued another cheque on 20.07.2014, but it was also dishonoured on 30.09.2014 with the endorsement "insufficient funds". The complainant issued a legal notice asking the accused to pay the money within 15 days from the date of receipt of the notice. The notice was duly serve....
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....mount despite the receipt of a valid notice of demand. Hence, the appeal was dismissed. 9. Being aggrieved from the judgment and order passed by the learned Courts below, the accused has filed the present petition asserting that the learned Courts below erred in appreciating the evidence. The accused had duly rebutted the presumption contained in Sections 118 and 139 of the N.I. Act. The evidence was not appreciated holistically. The complainant failed to prove his case beyond a reasonable doubt. There is no pre-existing duty or liability. Therefore, it was prayed that the present petition be allowed and the judgments and order passed by the learned Courts below be set aside. 10. I have heard Mr. Rajeev Sharma, learned counsel, for the petitioner and Mr. Y.P. Sood, learned counsel, for the respondent. 11. Mr. Rajeev Sharma, learned counsel, for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. Learned Courts below erred in appreciating the evidence. The complainant failed to prove that the cheque was issued to discharge his legal liability. The notice was not served upon the accused, and the learned Trial Court erred in convicting and....
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....dering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 15. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was observed : "13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularity of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460, where the scope of Section 397 has been considered and succinctly explained as under: "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set righ....
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....or 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 a 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 reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in coming to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..." 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysi....
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....set concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative." 18. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court. 19. The accused Sanjay Rajta admitted in his statement recorded under Section 313 of Cr.PC that the complainant had an apple orchard, and he (the accused) is running the business in the name of M/s. Skyline Fruit Marketing Enterprises. He admitted that the complainant had supplied the apple box worth Rs.2,61,994/- and the cheque was issued by the Firm. He did not deny his liability to pay the amount, but he was ready to pay his share, therefore, it is apparent from the statement made under Section 313 of the Cr.PC ....
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....pon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such an approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law." 23. Similar is the judgment in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers (2020) 12 SCC 724, wherein it was observed: - 7.2. What is emerging from the material on record is that the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security, and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice, it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be no....
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....e signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence. 24. The presumption under Section 139 of the NI Act was explained by the Hon'ble Supreme Court in Triyambak S. Hegde v. Sripad, (2022) 1 SCC 742: (2022) 1 SCC (Civ) 512: 2021 SCC OnLine SC 788 as under at page 747: "12. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exts. P-6 and P-2 are not disputed. Ext. P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below, a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the NI Act reads as hereunder: "139. Presumption in favour of the holder. -It shall be presumed, unless the contrary is proved, that the holder of a cheque received....
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....enumerated by this Court in the following manner: 25.1. Once the execution of the cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption, and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come into the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come into the witness box to support his defence. 26. Applying the preposition of law as noted ab....
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....1] relied on by the learned counsel for the respondent, though on facts the ultimate conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to the presumption arising under Sections 118 and 139 of the NI Act on signature being admitted has been reiterated. Hence, whether there is a rebuttal or not would depend on the facts and circumstances of each case." 25. This position was reiterated in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735: (2022) 2 SCC (Cri) 726: (2022) 3 SCC (Civ) 442: 2022 SCC OnLine SC 302, wherein it was held at page 739: "8. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that the court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any ....
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....t every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence not repeated-reference to one can be taken as reference to another] 34. Section 139 of the NI Act, which takes the form of a "shall presume" clause, is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory for the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary, as is clear from the use of the phrase "unless the contrary is proved". 35. The Court will necessaril....
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....ons where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond a reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898]] 28. Therefore, the learned Courts below had rightly held that the cheque was issued by the accused in discharge of his legal liability. 29. The accused stated in his statement recorded under Section 313 CrPC that he was ready to pay his share, however, he failed to pay any amount to the complainant. He did not step into the witness box, and he did not examine any witnesses to prove that he had paid any amount to the complainant. It was held in Sumeti Vij v. Paramount Tech Fab Industries, (2022) 15 SCC 689: 2021 SCC OnLine SC 201 that the accused has to lead defence evidence and his statement under Section 313 is not sufficient. It was observed at page 700 : "20. That apart, when the complainant exhibited all these documents in support of his compla....
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....amount despite the receipt of the notice of demand. Therefore, all the ingredients of Section 138 of N I Act were duly satisfied, and the learned Courts below had rightly convicted the accused for the commission of an offence punishable under Section 138 of the N.I. Act. 34. Learned Trial Court sentenced the accused to undergo simple imprisonment for two years and pay a compensation of Rs.2,60,000/-. The offence under Section 138 of N.I. Act can be punished with an imprisonment of two years, which means that the learned Trial Court had imposed the maximum sentence. The Learned Trial Court did not assign any reason for imposing the maximum sentence. It was stated that the offence was economic, and the trust in the banking system was breached by the act of the accused. However, these are irrelevant considerations for imposing the maximum sentence because these considerations were considered by the legislature while creating the offence and prescribing the punishment. Further, these considerations are present in every case of cheque dishonour. It was not even proved that the accused is a habitual offender, therefore, the imposition of the maximum sentence was not justified. Keeping....