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2020 (3) TMI 987 - HC - Indian LawsDishonor 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.
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