The burden of proof on the prosecution to establish accusations against the accused and the standard of proof required in criminal cases.

JUDGMENT :

B.K. Patel, J. - By judgment dated 28.2.2001 passed in I.C.C. Case No. 499 of 1997, instituted by the O.P. complainant against the Petitioner-accused, by the learned J.M.F.C., Bhubaneswar the Petitioner was convicted u/s 138 of the Negotiable Instruments Act, 1881 (for short the 'Act') and sentenced to undergo R.I. for six months and pay fine of Rs. 5000/- in default to undergo R.I. for six months, and also was directed to pay Rs. 1, 60, 000/- as compensation to the complaint. By judgment and order dated 05.01.2002 in Criminal Appeal No. 77/9 of 2001, preferred by the Petitioner, the learned First Adhoc Additional Sessions Judge, Bhubaneswar confirmed the orders of conviction, sentences and compensation. However, it was directed that in default of payment of sentence of fine, as awarded, the Petitioner shall undergo R.I. for three months. Being aggrieved, the Petitioner has preferred this revision.

2. Complainant's case is that he is a wholesaler of foreign liquor. The accused who has a retail liquor shop used to take liquor from the complainant on credit basis and pay the credit amount by cash or cheques. On such account Rs. 1,65,000/- was payable by the accused to the complainant. Initially the accused issued two cheques bearing Nos. 136595 for Rs. 15,000/- and 285015 for Rs. 35,000/-. Balance of Rs. 1,15,000/- was outstanding against him. The complainant presented the cheques in the Bank for payment. However, both the cheques were dishonoured due to insufficiency of funds in the credit of the accused. As the accused failed to pay the cheque amount despite service of advocate's notices, I.C.C. Case Nos. 30 and 31 of 1997 were instituted against the accused u/s 138 of the Act. The accused however, paid Rs, 35,000/- in connection with I.C.C. Case No. 30 of 1997 had been instituted. Therefore, the complainant withdrew said complaint. Thereafter, the accused issued Anr. cheque bearing Nos. 287935 for balance amount of Rs. 1,15,000/- outstanding against him. The complainant presented the cheque in the Bank for payment to his account. The cheque was returned to the complainant unpaid. The complainant gave advocate's notice asking the accused to pay the cheque amount. However, the accused failed to pay the amount within the stipulated period.

Defence took the plea of the denial

In order to substantiate his allegations complainant examined himself as P.W.1 and relied upon documents Exts. 1 to 5. No defence evidence was adduced from the side of the accused.

3. Contentions raised on behalf of the Petitioner were confined to assailing the concurrent findings of the learned courts below. However, scope of interference by invoking revisional jurisdiction is well defined. The revisional jurisdiction is not to be invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record. If the revisional court on appreciation of evidence on record and reappraisal of the evidence, takes a view different from and contrary to the view taken by the lower court, then also it cannot be a ground for interfering in revision. However, where the conclusion of a Magistrate is grossly and palpably unjust or is based upon manifestly erroneous approach and erroneous appraisal of the evidence, and further the Magistrate has misconceived the evidence and has come to an obviously wrong conclusion the revisional court would be fully justified to go into facts and correct the error that has cropped up into the judgment of the trying Magistrate. In such case, the revisional court is not interfering on the ground of inadequacy of evidence, but on the ground that there has been a clear case of miscarriage of justice.

4. It is also pertinent to point out that in a criminal case burden lies on the prosecution to establish the accusations made against an accused. Standard of proof so far as the prosecution is concerned is proof beyond reasonable doubt; the one of the accused is only mere preponderance of probab