Case Note & Summary
The present judgment arises out of two criminal revision applications filed by the accused, Jamsinghbhai Laxmanbhai Makwana, challenging his conviction under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for dishonour of cheques. The complainant, respondent No.2, had filed two complaints under Section 138 of the NI Act alleging that the accused issued cheques which were dishonoured due to insufficient funds. The trial court, being the 5th Additional Chief Judicial Magistrate, Rajkot, convicted the accused in Criminal Case No.2033 of 2016 and sentenced him to simple imprisonment for two years and directed payment of compensation of Rs.7,00,000/- within 60 days, with default sentence of one year. The accused appealed before the 11th Additional Sessions Judge, Rajkot, in Criminal Appeal No.217 of 2018, which was dismissed on 12.12.2019, confirming the conviction and sentence. Aggrieved, the accused filed two revision applications under Sections 397 read with 401 of the Code of Criminal Procedure, 1973 (CrPC) before the High Court of Gujarat. The main legal issues were whether the concurrent findings of the courts below were perverse or illegal warranting interference in revisional jurisdiction, and whether the sentence imposed was excessive. The accused argued that the courts below had not properly appreciated the evidence and that the presumption under Section 139 of the NI Act was rebutted. The complainant contended that the execution of the cheque and the signature of the accused were admitted, and the accused failed to rebut the presumption. The High Court, after hearing both sides, held that the revisional court cannot reappreciate evidence unless the findings are perverse or illegal. The court found that the concurrent findings were based on proper appreciation of evidence and that the accused had failed to rebut the presumption under Sections 118 and 139 of the NI Act. However, considering the long pendency of the matter and the fact that the accused had already undergone some sentence, the High Court modified the sentence to the period already undergone and reduced the compensation amount to Rs.3,00,000/-. The court directed that if the compensation is not paid within three months, the accused shall undergo simple imprisonment for six months. The revision applications were partly allowed to the extent of sentence modification.
Headnote
A) Criminal Procedure Code - Revisional Jurisdiction - Section 397 read with 401 CrPC - Scope of Interference - The revisional court cannot act as an appellate court and reappreciate evidence unless the findings are perverse, illegal, or based on no evidence - Held that the concurrent findings of the courts below were based on proper appreciation of evidence and did not warrant interference (Paras 5-7). B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Sections 118 and 139 - The complainant discharged the initial burden by proving the execution of the cheque and the signature of the accused - The accused failed to rebut the presumption on a preponderance of probabilities - Held that the conviction was justified (Paras 8-10). C) Criminal Procedure Code - Sentence Modification - Section 397 read with 401 CrPC - The High Court in revisional jurisdiction can modify the sentence in the interest of justice - Considering the long pendency and the fact that the accused had already undergone some sentence, the sentence was reduced to the period already undergone and the compensation amount was modified - Held that the ends of justice would be met by reducing the sentence (Paras 11-12).
Issue of Consideration
Whether the concurrent findings of conviction under Section 138 of the Negotiable Instruments Act, 1881 are perverse or illegal warranting interference in revisional jurisdiction, and whether the sentence imposed is excessive.
Final Decision
The High Court partly allowed the revision applications. The conviction under Section 138 of the Negotiable Instruments Act, 1881 was upheld, but the sentence was modified to the period already undergone. The compensation amount was reduced from Rs.7,00,000/- to Rs.3,00,000/-, payable within three months, failing which the applicant shall undergo simple imprisonment for six months.
Law Points
- Revisional jurisdiction under Section 397 CrPC is limited and cannot be exercised as an appellate court
- reappreciation of evidence is not permissible unless the finding is perverse or illegal
- Section 138 NI Act creates a strict liability offence once the statutory presumptions under Sections 118 and 139 are raised
- the accused must rebut the presumption on a preponderance of probabilities
- sentence modification is permissible in revision to meet the ends of justice.
