PRAFULLA KUMAR MOHANTY Vs. AKSHYA KUMAR BISWAL

JUDGEMENT

(1.) -BY judgment dated 28. 2. 2001 passed in I. C. C. Case No. 499 of 1997, instituted by the OP complainant against the petitioner/accused, by the learned J. M. F. C. , Bhubaneswar the petitioner was convicted under Section 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. 5,000, in default to undergo R. I. for six months, and also was directed to pay Rs. 1,60,000 as compensation to the complainant. By judgment and order dated 5. 1. 2002 in Criminal appeal No. 77/9 of 2001, preferred by the petitioner, the learned First Ad hoc 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 amount Rs. 1,65,000 was payable by the accused to the complainant. Initially the accused issued two cheques bearing Nos. 136595 of 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 under Section 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 another cheque bearing No. 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 PW1 and relied upon documents Exs. 1 to 5. No defence evidence was adduced from the side of the accused. 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 or record. If the revisional Court on appreciation of evidence on record and re-appraisal of the evidence takes a view different from and contrary to the view taken by the lower Court, then also it cannot be ground for interfering in revision. However, where the conclusion of a Magistrate is grossly and palpably unjust or is based upon a 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.

(3.) 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 on the accused is only mere preponderance of probability. Accused may substantiate his defence from the materials placed before the court by the prosecution. To substantiate the probability of defence plea, burden of proof on the defence is not as onerous as the prosecution. Therefore, even if, as in the present case, no defence evidence has been adduced from the side of the accused that does not deprive the accused to urge that evidence adduced on behalf of the complainant does not improbability his plea. In this context decisions of the Hon'ble Supreme court in K. Prakashan v. P. K. Surendran and M. S. Narayan Menon @ Main v. State of Kerala may be referred to.