2020 (1) TMI 1352 - HC - Indian Laws

Dishonor of Cheque - discharge of burden to prove - Section 138 of the Negotiable Instruments Act - HELD THAT - It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below the High Court cannot act as a second appellate Court. It may be pertinent to point out that the cheque in this case viz. Ex.P1 is dated 03.05.2010 and it has been signed by Thangaraju (A2) in his capacity as the partner of M/s.Bright Spinners (A1). Whereas the cheque (Ex.D5) for which Rajendran has initiated a separate prosecution is dated 04.05.2010 and it has been signed by Devasenathipathy (A3) in his capacity as the partner of M/s.Bright Spinners (A1). Apart from the fact that both Sampathkumar and Rajendran have approached two different lawyers of the same chamber there is no other satisfactory material to infer that the cheque was issued as security for the supply of yarns - it is not the case of the accused that the complainant used to take blank cheques as security for the yarns supplied by him. It is seen that the impugned cheque in this case is dated 03.05.2010 and it was presented by the complainant only on 22.10.2010. Had the accused given the impugned cheque as security for purchasing yarns and the complainant not supplied the yarns the accused would have issued directions to their Bank to stop payment but that has not been done in this case. Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability even that has not been done in this case. Criminal Revision is dismissed.

Summary

Issues:
- Criminal Revision Case against the judgment confirming conviction and sentence under Section 138 of the Negotiable Instruments Act.
- Failure to appreciate the defense and burden under Section 139 of the Negotiable Instruments Act.
- Accusations of vexatious prosecutions and contradictory statements by the accused.
- Examination of evidence, concurrent findings, and jurisdictional error in revisional jurisdiction.

Analysis:

The Criminal Revision Case was filed against the judgment confirming the conviction and sentence under Section 138 of the Negotiable Instruments Act. The accused were convicted for the offense, and the appeal filed by them was dismissed by the V Additional District and Sessions Judge. Challenging the concurrent findings, the accused filed the present Criminal Revision Case before the High Court under Section 397 r/w. 401 Cr.P.C. The High Court noted that it cannot act as a second appellate Court when there are concurrent findings of fact by two lower Courts, citing relevant legal precedents.

The defense argued that the Courts failed to appreciate the defense and the burden under Section 139 of the Negotiable Instruments Act satisfactorily discharged by the accused. However, the complainant's testimony regarding the loan, issuance of the impugned cheque, its dishonor, and subsequent legal actions were found consistent. The defense's contention of vexatious prosecutions and contradictory statements was examined. The accused's evidence regarding the issuance of the cheque as security for yarns was found lacking credibility, with contradictions in their statements.

The Court analyzed the evidence, including the reply notice and testimonies, to determine the veracity of the defense's claims. It was observed that the accused failed to prove their defense satisfactorily. The Court emphasized that even if a wrong order is passed by a Court having jurisdiction, interference is not warranted without a jurisdictional error. Ultimately, the High Court found no infirmity in the concurrent findings of the lower Courts, leading to the dismissal of the Criminal Revision and confirmation of the judgments below. The trial Court was directed to secure the accused for serving the remaining sentence, with provisions for the disbursement of any deposited amounts to the complainant or legal heirs, and the option for compounding the offense under Section 147 of the Negotiable Instruments Act.