TMI Blog2016 (7) TMI 1692X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned back unpaid by the banker of the petitioner. Therefore, complainant preferred complaint as aforesaid, wherein, he produced relevant oral evidences at Exh. 13, 37, 47, 50, 23, 24, 26, 27, 28 and 44, whereas, the petitioner has neither stepped into witness box nor adduced any oral evidence but relied upon some documentary evidence which are produced on record at Exh. 64, 65, 66 and 67. 6. After considering the rival submissions and evidence, the Trial Court has considered the defence version; wherein, it is submitted that prudent man would not lend money to the petitioner when his previous dues were not recovered and in support of such submission, he is relying upon the judgment of the Civil Court; wherein, a suit filed by the wife of the complainant to recover an amount of Rs. 1,31,000/- was dismissed by the Court. Therefore, it is submitted that when suit of the wife of the complainant has been dismissed, complainant would never lend money to the accused and therefore, in absence of proper evidence that, in fact, complainant has paid any money to the accused or that accused is otherwise liable to pay any amount to the complainant, the cheque though possessed by the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o defence to put forward and he is simply trying to kill time before he is obliged to pay the amount of cheque in question. 8. It is also undisputed fact that practically petitioner has tried to delay the matter at every stage because even before the Court of Magistrate when he has to cross examine the complainant, he has delayed the execution of cross examination for pretty long time and therefore, his right to cross examine was closed but same was reopened by recalling the complainant only at a nominal cost of Rs. 250/- by order dated 24th May, 2006 below Exh. 27. 9. If we scrutinize the evidence, the basic principle that is to be adopted is that entire evidence is to be appreciated in toto and thereby there cannot be isolated reading of one or two lines from here and there for coming to any conclusion. But, the fact remains that after service of statutory notice, petitioner-accused has not put forward his defence in reply to the notice and therefore, prima-facie, it appears from the record that thereafter, petitioner is trying to take all available defence so as to avoid the payment. 10. Otherwise, provision of Section 139 of the Negotiable Instruments Act is quite clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39, there could be presumption under Section 118 of the Act itself which is part of chapter No. XIII which deals with special rules of evidence. Section 118(a) specifically provides that until the contrary is proved, presumption of consideration shall be made that every negotiable instrument was executed and drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. Whereas, Section 120 of the Act provides that even maker of a cheque is not permitted to deny the validity of the endorsement as originally made or drawn by him. Similarly, Section 121 of the same Act also specifically provides for estoppel against denying capacity of payee to indorse when it is stated that no maker of a promissory note and no acceptor of a bill of exchange [payable to order] shall, in a suit thereon by a holder in due course, be permitted to deny the payee's capacity, at the rate of the note or bill, to indorse the same. Therefore, there are certain sub-rules of evidence with restrictions of the Court to have some specific presumption in favour of the holder of the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption which is otherwise proved by the statute. Therefore, only because of such judgment, it cannot be held that there is any substance in the revision so to interfere with concurrent findings of the Courts below, more particularly, in view of the fact that practically, Supreme Court has considered the fact that it is a petition under Article 136 of the Constitution of India against concurrent findings of acquittal and therefore, Supreme Court has considered the settled legal position that ordinarily, the Supreme Court should not interfere with the judgment of acquittal, if two views are possible, did not agree to interfere in concurrent findings of two Courts below. Therefore, this judgment would not be helpful to the petitioner when practically two concurrent findings are against him and revisional jurisdiction of this Court is also limited only to see that there may not be absolute illegality and irregularity and therefore, this Court should not appreciate the evidence which is otherwise appreciated by two Courts below in favour of respondent even if another view or interpretation is possible. 16. Petitioner is also relying upon the decision in the case of Rangappa v. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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