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TMI Blog2020 (1) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... venience, the petitioners and the respondent will be referred to as accused and complainant, respectively. 3.It is the case of the complainant that, Thangaraju (A2) and Devasenathipathi (A3) are the partners of M/s.Bright Spinners (A1); Thangaraju (A2) borrowed Rs. 3,00,000/- on 20.04.2010 for his business purposes and issued a cheque dated 03.05.2010 for Rs. 3,02,000/- (Ex.P1) drawn on the United Bank of India from the account of M/s.Bright Spinners (A1); the impugned cheque was signed by Thangaraju (A2) in his capacity as the partner of M/s.Bright Spinners (A1); the complainant presented the cheque on 22.10.2010 and the same was returned with the endorsement "exceeds arrangement" on 23.10.2010, vide return memo (Ex.P2); the complainant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 397 r/w. 401 Cr.P.C. 8.Heard learned counsel for the accused and learned counsel for the complainant. 9.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 [See State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and Others, etc. (2004) 7 SCC 659 ]. Very recently, in Bir Singh vs. Mukesh Kumar [(2019) 4 SCC 197], the Supreme Court has held as under: "17.As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457] , it is a well-established principle of law that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Act, despite the fact that no yarn was supplied. To prove that Rajendran has initiated a separate prosecution under Section 138 of the Negotiable Instruments Act, the accused marked Exs.D1 to D7. 14.Thangaraju (A2)/D.W.1, in his evidence, has not stated as to when the impugned cheque in this case was obtained as security for the purchase of yarns. According to Thangaraju (A2)/D.W.1, the business transaction was in the year 2009-2010 and the cheques were given as security at that time. Sampathkumar (P.W.1) has categorically stated that he is not a cotton broker, but he is an agriculturalist and a cattle broker and owns extensive lands. 15.It may be pertinent to point out that the cheque in this case, viz., Ex.P1 is dated 03.05.2010 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows : "Your client and the said Rajendran used to arrange for supply of cotton to my clients after getting signed blank cheques as security from my clients. My clients, after making payment, used to get back the signed blank cheques deposited by them with your client and the said Rajendran." Whereas, in the cross-examination, Thangaraju (A2) has stated that, it was the first time that the cheques were given as security; there was no such instance earlier to August, 2010. Thus, there is apparent contradiction in the defence taken by the accused. 18.Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability, as held by the Supreme Court in Rangappa Vs. Sri Mohan [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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