Smt. B.R. Vasantha Kokila vs Smt. Sujaya

N. Ananda, J.—There are concurrent findings of Courts below that petitioner (accused) has committed an offence punishable u/s 138 of the Negotiable Instruments Act. Heard the learned counsel for parties.

The law is fairly well settled that this Court while exercising re visional jurisdiction, does not sit as a Court of Second Appeal. This Court can interfere with the impugned judgment if it is demonstrated that the Courts below have committed glaring errors in appreciation of evidence or errors of law resulting manifest injustice to petitioner.

The petitioner accused while not disputing that dishonoured cheque belong to the account held by her, had made an unsuccessful effort to establish that complainant did not have capacity to lend a sum of Rs. 5 lakhs. The amount was not paid to the accused. The complainant had not caused notice as required u/s 138 of the Negotiable Instruments Act. One Jagadisha and Vimala who were acquainted with accused had visited the house of accused and they had stolen the cheque book. They had given one of the cheque leaves to the complainant to initiate the instant complaint.

The accused having pleaded the aforestated special and peculiar circumstances to rebut the evidence adduced by complainant and also presumption available u/s 139 of the N.I. Act, has failed to substantiate the same.

The plea of accused that one Jagadisha and Vimala had stolen the cheque leaves and handed over one of the cheque leaf to complainant, looks prima-facie untenable. There is nothing on record to indicate that this complainant was a privy to alleged theft of cheque leaf from the house of accused. If the cheque leaves were stolen one would expect the looser of cheque leaves to inform banker to stop payment against stolen/lost cheques. The conduct of accused is not consistent with her evidence. In the circumstances, the Courts below are justified in rejecting the defence putforth by the accused. The accused has failed to rebut the evidence adduced by complainant. The accused has failed to avail the presumption available u/s 139 of the N.I. Act Therefore, there are no reasons to interfere with the impugned judgment. The petition is dismissed.