2020 (3) TMI 987 - HC - Indian Laws

Dishonor of cheque - insufficiency of funds - cheque is torn and cellophane tape has been used to hold it firm - section 138 of NI Act - HELD THAT - It was not dishonoured on the ground that the signature varies or the instrument is mutilated, but on the ground of insufficiency of funds. 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. Both the Courts have disbelieved the defence taken by the accused that his small daughter had torn some cheque leaves and one of such torn cheque leaves had gone into the hands of the complainant through a relative and the present prosecution has been filed. The accused has not stated the date on which his daughter tore the cheque leaves. The reply notice in this case (Ex.P5) was issued by the accused on 18.07.2006. Since the accused knew that he had given a torn but glued cheque leaf to the complainant towards the loan availed by him, he took a specious defence in the reply notice (Ex.P5) that his child had torn the cheque leaves and such a torn cheque leaf had gone into the hands of the complainant. There is a ring of truth in the testimony of the complainant (P.W.1) inasmuch as he has clearly stated that, he was anxious to get back his money from the accused and that the accused gave him a torn cheque saying that he (accused) will ensure that it is cleared if it is presented two moths later and that is why he accepted it and presented it two months later. Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability, the false defence taken by the accused perforce strengthens the case of the complainant. In fine, this Court does not find any infirmity in the findings of fact arrived at by the two Courts below, warranting interference. Revision dismissed.

Summary

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Discrepancy in signatures on the impugned cheque.
3. Burden of proof under Section 139 of the Negotiable Instruments Act.
4. Evaluation of evidence by the trial Court and the District and Sessions Judge.
5. Revisional jurisdiction of the High Court.

Issue 1: Conviction under Section 138 of the Negotiable Instruments Act:
The case involved a complaint by the respondent regarding a loan and a dishonored cheque issued by the accused. The trial Court convicted the accused under Section 138 of the Negotiable Instruments Act, sentencing him to imprisonment and a fine. The appeal filed by the accused was dismissed by the District and Sessions Judge. The accused challenged these findings through a Criminal Revision Case before the High Court.

Issue 2: Discrepancy in signatures on the impugned cheque:
The accused claimed that the impugned cheque was forged by the complainant, as he did not sign it. However, the complainant presented evidence regarding the circumstances under which the cheque was issued and dishonored. The accused's defense included a narrative involving his daughter tearing cheque leaves, leading to the cheque in question being presented for clearance.

Issue 3: Burden of proof under Section 139 of the Negotiable Instruments Act:
The accused attempted to discharge the burden under Section 139 by presenting a defense witness and providing explanations for the discrepancies in the case. The complainant, on the other hand, detailed the loan, cheque issuance, and subsequent events to establish the offense under Section 138.

Issue 4: Evaluation of evidence by the trial Court and the District and Sessions Judge:
Both lower Courts examined the evidence, including witness testimonies and documentary proof, to reach their conclusions. The trial Court and the District and Sessions Judge disbelieved the accused's defense, finding inconsistencies and lack of credibility in his version of events.

Issue 5: Revisional jurisdiction of the High Court:
The High Court, while considering the Criminal Revision Case, emphasized that it cannot act as a second appellate Court when dealing with concurrent findings of fact. Referring to legal precedents, the Court highlighted the limitations of revisional jurisdiction in such matters and upheld the decisions of the lower Courts based on the evaluation of evidence and application of legal principles.

In conclusion, the High Court dismissed the Criminal Revision Case, confirming the judgments of the trial Court and the District and Sessions Judge. The accused was directed to serve the remaining sentence, and any deposited amounts were to be disbursed to the complainant. The parties were given the option to seek compounding of the offense under Section 147 of the Negotiable Instruments Act.