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2010(1) Bankmann 86
KERALA HIGH COURT
S.S. Satheesachandran. J.
Shaju N.I — Appellant
versus
T.K. Paulose and another — Respondents
(Cri. R.P. No. 290 of 2002,
Decided on : 17th July, 2009
For the Appellant :C.P. Udayabhanu, for the petitioner.
For the Respondent: M.K. Pushpalatha (Public Prosecutor), P.B.
Asokan and Geo (Paul), for the respondents.
IMPORTANT POINT
Once the accused raised a probable defence the presumption of passing of consideration stood rebutted.
Headnote:Negotiable Instruments Act, Section 138 - Presumption arising under Section 139 of the NI Act – Nature of – A presumption under law - Rebutting such presumption - Standard of proof required to be discharged by the accused - Evidently is preponderance of probabilities - To raise a probable defense - Not required to be as strict as required from the complainant.
Facts of the case :
The facts leading to the filing of present revision petition are that the accused present petitioner towards discharge of his liability under a loan availed, issued Ext. PI cheque for a sum of Rs. 1,40,000/- promising its encashment on presentation in due course. Statutory notice issued intimating the dishonour of the cheque and demanding the sum thereunder was acknowledged but not responded with payment. Complainant thereupon laid a complaint to prosecute the accused for the offence under Section 138 of the NI Act.
Finding of court :
In a complaint arising under Section 138 of the NI Act whatever be the laudable objectives behind the incorporation of that offence under the NI Act and the statutory presumptions that have to be drawn as covered under Section 139 of the NI Act that unless the contrary is proved a cheque executed shall be presumed to have been issued towards discharge of the debt or liability a Court cannot abdicate its judicial function of scrutinising and appreciating the evidence on the materials tendered by both sides and enter a finding solely banking upon the presumption under Section 139 of the NT Act. A Court is not witnessing a drama enacted before it as a mute spectator but an active player and conscientious dispenser of justice analytically appreciating the materials tendered to for the correct conclusion in accordance with legal principles applicable, and that being so, the proved facts and circumstances presented by the materials tendered in the case should guide and monitor its decision in forming an opinion whether the statutory presumption under Section 139 of the NI Act has been rebutted or not in the case.
S.S. Satheesachandran, J.—
Concurrent verdict of guilty rendered against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, for short. ‘the NI Act’, is \challenged in this revision. Petitioner hereinafter referred to as the ‘accused’ was prosecuted for the above offence on a complaint filed by the 1st respondent. The learned Magistrate, after trial, negativing his plea of not guilty found him guilty, convicted and sentenced him to undergo simple imprisonment for one month and to pay a sum of Rs. 1,40,000/- as compensation to the complainant under Section 357(3) of the CrPC with default term of simple imprisonment for one month more. In appeal, the Additional Sessions Judge, Ernakulam, confirmed the conviction and sentence without any modification.
2. The case of the complainant in brief is thus: The accused towards discharge of a liability under a loan availed, issued Ext. PI cheque for a sum of Rs. 1,40,000/- promising its encashment on presentation in due course. Statutory notice issued intimating the dishonour of the cheque and demanding the sum thereunder was acknowledged but not responded with payment. Complainant thereupon laid a complaint to prosecute the accused for the offence under Section 138 of the NI Act. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined himself as PW I and got marked Exts. PI to P6 to prove his case. The accused questioned under Section 313 of CrPC, and also earlier when the complainant as PW I was subjected to cross-examination, set forth a defence case that two blank signed cheques had been obtained from him by a finance company at the time when he had availed financial assistance to purchase a motor vehicle on the security of that vehicle. One of those two cheques obtained by that company after making fraudulent entries showing the complainant as the drawee at the instance of that company, after its presentation and dishonour, according to the accused, has been made use of for filing the present complaint on false and baseless allegations. To support the defence so canvassed, the accused examined six witnesses including himself ad OWs I to 6 and got marked Exts. 0 I to 05. The learned Magistrate, after appreciating the materials tendered and hearing the Counsel on both sides, repelling the defence case canvassed found merit in the case of the complainant and accepted it to hold the accused guilty of the offence negativing his defence as unacceptable. Accused was thereupon convicted and sentenced for the offence as indicated above, which was confirmed without modification in appeal also.
3. The challenges raised against the conviction of the accused concurrently held by the two inferior Courts, no doubt, has to be appreciated within the narrow limits of revisional jurisdiction and in the absence of any glaring serious infirmity disclosing that such conviction will amount to miscarriage of justice, no interference thereof is permissible. Revision is a paternal jurisdiction vested with a superior forum to correct and rectify the orders of the inferior Courts, provided. such order suffers from serious infirmities likely to cause miscarriage of justice. Normally in revision, are-appreciation of evidence is impennissihlc\ unless it is shown that the findings arrived by the inferior Courts could not have been formed on the materials placed or it is so perverse and unacceptable. A different view is possible than what was formed by the inferior Court on the materials is not sufficient to invoke revisional jurisdiction and supplement the view of the Revisional Court if that view was also possible on the materials. However, after going through the orders/judgments of the inferior Courts challenged in the revision with reference to the submissions made by the Counsel and perusing the records of the case, if the revisional Court is satisfied that the materials produced had been misconstrued and
