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2022 (6) TMI 487 - HC - Indian LawsDishonor of Cheque - Loss of cheque - rebuttal of presumption - convicting and sentencing the petitioner for the offence punishable under Section 138 of the N.I. Act - requirement of interference of this Court by invoking the revisional jurisdiction? - HELD THAT:- It is clear that though the accused disputed the signature in the cross-examination that signature not belongs to him, the signature available in the vakalath was confronted and he admits the same. It is important to note that though he contends that the notice was not served on him personally, but he categorically admits that notice was taken by his office incharge officer and handed over the notice to him and the same also bears the signature of incharge officer. When such being the case, the petitioner ought to have given the reply to the notice and no such reply was given. In the cross-examination of P.W. 1, specific defence was taken that one Devraj Urs, who is the relative of P.W. 1 had given the cheque in favour of the complainant and the same has been misused since Devraj Urs handed over the said cheque and got filed this case and the same has been denied. No doubt, in the income tax declaration, P.W. 1 has not declared for having paid the money. But in the cross-examination, P.W. 1 admits that he has not produced any documents to show that he is paying income tax. But he admits that he is an income tax assessee. But non-filing of the document for having paid income tax will not take away the case of the complainant and the petitioner has to explain how the subject matter of cheque had gone to the hands of the said Devraj Urs and what made him to give the said cheque - It is only stated that Devraj Urs had taken away several cheques belonging to him and no doubt, the wife of the petitioner had given the complaint in terms of Ex. D.2, but she has not been examined before the Trial Court and both the Courts have taken note of that if she had been examined before the Trial Court, an opportunity was given to the complainant to testify the document of Ex. D.2. The other contention of the petitioner is that P.W. 1 has admitted the relationship with Devraj Urs and mere admission that Devraj Urs is the relative of the complainant does not mean that Devraj Urs had given the cheque in favour of the complainant. I have already pointed out that contra defence was taken in the chief examination and cross-examination and even the petitioner had gone to the extent of denying his signature available in Ex. P.1 and it is not his case that the signature not belongs to him and nowhere in the affidavit he has stated that the said signature not belongs to him, but only in the cross-examination he says the same - there are no force in the contention of the learned counsel for the petitioner to accept the argument that the petitioner has probabalised his case. Loss of cheque - rebuttal of the presumption - HELD THAT:- The Apex Court in the judgment in the case UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER [2019 (11) TMI 550 - SUPREME COURT], held that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. The defence that the cheque book was lost/stolen or that cheque was misused was completely without basis. The contention of the petitioner cannot be accepted regarding source of income and non-production of income tax declaration regarding payment and the very defence that cheque was stolen was not proved. Apart from that, when the notice was served, no reply was given and he kept quiet and during the course of trial afterthought inconsistent defence was taken and hence there are no merit in the petition. Both the Courts have given anxious consideration with regard to defence which have been taken. There are no error committed by both the Courts. In order to invoke the revisional jurisdiction, there must be an error in the finding of the Trial Court and the Appellate Court and if any perverse order is passed against the cogent evidence available on record, then this Court can exercise the revisional jurisdiction - petition dismissed.
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