TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 1347
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....commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short 'NI Act'). It was asserted that the complainant is the proprietor of M/s Kohli Traders and deals in cold drinks and other items. The accused No.1 is the proprietor of M/s MVASKT India. He purchased various items of cold drinks from the complainant vide Bill No.51 dated 25.05.2015 for a sum of Rs.2,90,440/-. The accused paid Rs.27,224/- in cash and issued a cheque of Rs.2,63,216/- to discharge the remaining liability. The complainant presented the cheque before his Bank-Bank of Baroda, Una Branch. The cheque was forwarded to the Bank of the accused but it was dishonoured with the remarks 'funds insufficient'. The complainant issued a legal notice dated 25.08.2015 to the accused requesting him to pay the amount of Rs.2,63,216/- within 15 days from the date of the receipt of the legal notice. The accused refused to receive the notice and the same is deemed to be served. The accused failed to pay the amount despite the deemed receipt of the notice; hence, the complaint was filed before the learned Trial Court to take action against the accused as per the law. 3. The learned Trial Court fo....
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....nds. Accused failed to pay the amount despite a deemed notice of demand; hence, the appeal was dismissed. 8. Being aggrieved from the judgments and order passed by learned Courts below, the accused has filed the present petition asserting that learned Courts below erred in convicting and sentencing the accused. Learned Courts below did not appreciate the evidence in its right perspective. The cheque was given as a guarantee of the goods supplied to some unknown person. No evidence was led regarding the supply of the articles to the accused. The complainant had ordered certain goods from Shah Bihari Foods and when the consignment reached Una, the complainant refused to take the delivery of the goods. The accused sorted the difference between Shah Bihari Foods and the complainant. The accused issued a cheque to the complainant regarding the payment to be received from Baldev Kansal proprietor of TR Associates. The complainant misused the cheque and filed a false complaint against the accused, therefore, it was prayed that the present petition be allowed and the judgments and order passed by learned Courts below be set aside. 9. I have heard Mr. N.K. Thakur, learned Senior Counsel a....
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....findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 14. 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 th....
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....544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed on page 169: "12. This Court has time and again examined the scope of Sections 397/401 CrPC and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) "5. ... 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 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. Ordinaril....
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....the above case, also conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis. 16. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205: "16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset 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 hav....
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....nant and he was not entitled to payment of any money. The payment was to be made to Shah Bihari Foods. Further, the accused said that he had delivered a blank unsigned cheque as a security for the payment on behalf of T.R. Associates. A blank unsigned cheque does not carry any value and cannot constitute any security; therefore, it is highly improbable that the complainant would have accepted the blank unsigned cheque as a security. The accused did not examine any witness from Shah Bihari Foods or T.R. Associates to establish his version and in the absence of the statement of any officials of Shah Bihari Foods or T.R. Associates, learned Courts below were justified in rejecting the version of the accused. 21. The accused stated that the complainant issued a bill in the name of MVASKT India instead of T.R. Associates which means that the complainant issued the same bill in favour of T.R. Associates. A perusal of the bills (Ext. CW1/A and Ext. DA, D1 and D2) shows that these were issued on different dates for different amounts. Even the items mentioned in the bill, their MRP and quantity are different. The sub-total of the bills (Ext. DA, D1 and D2) is Rs.2,82,668/-, which is quite ....
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....from T.R. Associates regarding the payment of the money made by it to the complainant. No statement of account of the complainant was proved to establish that the complainant had received payment from T.R. Associates. Arun Guleri (CW2) appeared on behalf of the Bank of Baroda, the banker of the complainant. He was never asked to produce the statement of account of the complainant, therefore, the learned Courts below had rightly refused to place reliance upon the uncorroborated testimony of the accused. This was a possible view, which could have been taken based on the evidence led before the learned Trial Court and cannot be interfered with while exercising a revisional jurisdiction. 26. It was submitted that the signatures on the cheque are quite distinct from the specimen signatures (Ext.DW1/A) in the Bank. It was rightly held by learned Courts below that the cheque was not dishonoured with an endorsement "signatures differ" but with an endorsement 'funds insufficient'. Even if there is a mismatch of the signatures, it does not take away the liability under Section 138 of the NI Act. It was laid down by the Hon'ble Supreme Court in Laxmi Dyechem v. State of Gujarat, (2012) 13 SC....
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....ot only is it possible for the accused to establish this by leading positive evidence, but he could also place reliance on the evidence tendered by the complainant himself to discharge that burden. Hence, if it was the contention of the respondent that there were cheque leaves misplaced by him and which were sought to be misused by the appellant, it was for the respondent to have tendered evidence of the approximate date when there was a dissolution of the partnership business between the appellant and the respondent, and the respondent having operated his Bank Account thereafter using other cheque leaves and that the cheque leaves which were left behind upon such dissolution having fallen into disuse over a period of time, sought to be forged and fabricated at a later date by the appellant, was clearly on the respondent. There is no such evidence forthcoming except the self-serving evidence of the respondent. Further, in the event that any such cheque leaves were misused, a duty was cast on the respondent to inform his banker to stop payment, against such cheques which were lost or misplaced. There is no such evidence forthcoming. Nor is it the case of the respondent that the cheq....
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....t the impugned cheque was returned on two grounds, namely, (a) insufficient funds, and (b) the signature of the drawer differs. On receipt of, the statutory notice, dated 31.12.2013, [EX-P3] from the complainant, the accused, has sent a belated reply notice, dated 17.3.2014, [EX-P5], in which also the accused, did not take the plea that her signature has been forged in the cheque. She has taken, a plea that the impugned cheque was issued by her for a different debt. The accused took pains to examine Ganeshamoorthy, Senior Manager of Syndicate Bank, in which the accused has an account, to say that the signature in the cheque differed from the specimen signature with the Bank. This only shows that the accused had deliberately put her signature differently in the impugned cheque with the intention of cheating the complainant. However, a charge of cheating has not been framed against the accused. This conduct of the accused in giving the cheque by affixing her signature differently is relevant under Section 8 of the Indian Evidence Act, 1872. The presumption under. Section 139 of the Negotiable Instruments Act, 1881, comes into force, when once the cheque has been issued by the accused....
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....aken by the accused that he had issued an unsigned blank cheque was not at all probable, therefore, the learned Courts below had rightly held that the cheque was issued in discharge of the legal liability. 33. Memo of dishonour (Ext. CW1/A) shows that it was dishonoured with an endorsement of 'insufficient funds'. Dipti (CW3), the Officer of the ICICI Bank proved that the cheque was dishonoured due to insufficient funds. Her statement is corroborated by the statement of account of the accused, in which, an amount of Rs.4819.16/- was shown balance on 02.06.2015. Lovekesh Patial (DW1) also proved that the memo (Ext. DW1/B) was issued by the Bank. Therefore, it was duly proved that the cheque was dishonoured with an endorsement of funds insufficient. 34. The complainant stated that he issued a notice to the accused by means of a registered A.D. cover, which was returned with an endorsement 'refused'. The registered A.D. covers were placed on record, in which, an endorsement 'refused' was made. It was laid down by the Hon'ble Supreme Court of India in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555, that when a notice is returned unclaimed, it is deemed to be served. It was obs....
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....-service; therefore, the learned Courts below had rightly held that the notice was duly served upon the accused. 37. Therefore, it was duly proved on record that the accused had issued a cheque to discharge his legal liability, which cheque was dishonoured with an endorsement 'funds insufficient' and the notice was deemed to be served upon the accused but he failed to pay the amount; hence, he was rightly convicted by the learned Trial Court. 38. The learned Trial Court sentenced the accused to undergo simple imprisonment for one year. It was laid down by the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 138 that the penal provisions of Section 138 is a deterrent in nature. It was observed at page 203: "6. The object of Section 138 of the Negotiable Instruments Act is to infuse credibility into negotiable instruments, including cheques, and to encourage and promote the use of negotiable instruments, including cheques, in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments su....