The main legal point established in the judgment is the statutory presumption under the Negotiable Instruments Act regarding the issuance of a cheque in discharge of a legally enforceable debt, and the burden on the issuer to rebut this presumption.

JUDGMENT

Tarlok Singh Chauhan, J. - The petitioner has been convicted and sentenced to undergo simple imprisonment for a period of one year and to pay compensation of Rs.6,50,000/- to the respondent for an offence having been committed under Section 138 of the Negotiable Instruments Act(for short the ''Act'') by the learned Judicial Magistrate Ist Class, Court No.3, Shimla, on 11.06.2012/18.06.2012 which conviction and sentence was upheld by the learned Sessions Judge, (Forests), Shimla, on 03.01.2014, constraining him to file the present revision petition.

2. Briefly stated the facts of the case are that the respondent filed a complaint against the petitioner with the allegations that the petitioner had approached respondent- LIC Housing Finance Limited which was running its business of housing finance and the petitioner was granted house loan of Rs.6,50,000/- for the construction of the house. The said loan was to be repaid by the petitioner in equal monthly installments within a period of 12 years. However, the petitioner was irregular in making the installments as was agreed by him and, therefore, in discharge of his liability issued a cheque of Rs.5,87,385/- drawn at Bank of Maharashtra, Mandi. The cheque on presentation was dishonoured with the remarks "insufficiency of funds". Thereafter, respondent issued a legal notice demanding payment of the cheque amount, however, the petitioner despite receipt of the notice failed to make the payment.

3. The petitioner was summoned and notice of accusation was put to him to which he pleaded not guilty and claimed trial.

4. The respondent in order to substantiate its case examined one witness Hitender Singh Verma and thereafter closed the evidence, whereas, the petitioner after being examined under Section 313 Cr.P.C. himself stepped into the witness box as DW-1.

5. As observed above, the learned trial Magistrate after hearing the parties and perusing the evidence on record convicted the petitioner as aforesaid and the appeal filed against the said conviction and sentence also came to be dismissed by the learned Sessions Judge.

6. It is vehemently argued by Shri B.N.Sharma, Advocate, Legal Aid Counsel, for the petitioner that the findings recorded by the learned Courts below are perverse and, therefore, deserve to be set aside. On the other hand, Shri Sanjay Dalmia, Advocate, for the respondent, would support the judgments by contending that the same being in accordance with law call for no interference.

7. I have heard the learned counsel for the parties and have also gone through the records of the case.

8. However, before I deal with the contentions put-forth by the learned counsel for the petitioner, it would be necessary to delineate the scope and power of this Court while dealing with revision petition of the instant kind.

9. In Amur Chand Agrawal vs. Shanti Bose and another , (1973) AIR SC 799, the Hon''ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

10. In State of Orissa vs. Nakula Sahu , (1979) AIR SC 663, the Hon''ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram , (1973) AIR SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".

11. In Pathumma and another vs. Muhammad , (1986) AIR SC 1436, the Hon''ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".

12. In Bansi La