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2016 (7) TMI 1692 - HC - Indian LawsDishonour of Cheque - rebuttal of statutory presumption - acquittal of accused - HELD THAT:- The cheque was issued by the accused and it has returned unpaid by banker of the accused for want of sufficient fund in his account. Therefore, unless and until, the complainant is unable to identify the handwriting in such cheque, it cannot be said that accused has not issued the cheque at all. In all such cases, one basic thing to be recalled is that before filing of a complaint, a statutory notice is must and therefore, in present case also, the complainant has issued statutory notice of 31st December, 2004 by RPAD which is served upon the petitioner as per endorsement on acknowledgment slip of RPAD which is produced on record and thereafter, if petitioner fails to reply to such notice, prima-facie, it is to be believed that he has no defence to put forward and he is simply trying to kill time before he is obliged to pay the amount of cheque in question. In absence of any cogent and reliable evidence by the accused and as aforesaid, when documentary evidence relied upon by the petitioner- accused is not sufficient to rebut the presumption, practically, there is no substance in the revision, more particularly, when there are concurrent findings of two Courts below confirming the conviction. In the present case, there is no issue regarding relationship between the parties. There is no issue or evidence regarding misuse of cheque or loss of cheque and therefore, because the complainant is silent on certain facts which otherwise are not material and relevant for the consideration of commission of offence under the Negotiable Instruments Act, it cannot be said that petitioner has succeeded in proving his innocence or that he has rebutted the evidence of the complainant so as to confirm the acquittal in his favour. Thus, considering the settled legal position that otherwise revisional jurisdiction is limited which does not permit re-appreciation of the entire evidence when there are two concurrent findings of fact by two Courts below. Therefore, in view of the above facts and circumstances of the case and discussion, there is no substance in the revision application, and hence, revision application is dismissed.
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