TaxTMI 
TaxTMI 
2019 (1) TMI 1699
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account ) of the Negotiable Instruments Act, 1881 (the said Act). 2. It is appellant's case that appellant and respondent no.1 had business relations. Complainant states that accused was liable to pay to complainant some amount of money on account of several transactions and after taking accounts, accused agreed to pay to complainant a sum of Rs. 32 lakhs. Complainant states that accused issued a cheque for Rs. 32 lakhs bearing no.522850 dated 3rd May 1999 drawn on Abhudaya Co-operative Bank Limited, Vashi branch. This cheque, when deposited, came to be dishonoured with the endorsement "refer to drawer". Appellant issued a notice dated 11th September 1999 through ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... debt or other liability". The key word is legally enforceable debt or other liability. 4. Section 139 of the said Act provides for presumption in favour of holder and it says it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. It is settled law that this presumption is rebuttable and the onus is on the accused to raise the probable defence. The Apex Court in Basalingappa V/s. Mudibasappa (2019) 5 SCC 418 summarized the principles enumerated by the Apex Court in many matters. Paragraph 25 of the said judgment reads as under : 25. We having noticed the ratio laid down by this Court in above cases on Sections 11....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. 6. Accused did not lead any evidence to show that the signature on the cheque is not the way he normally signs. Therefore, the Trial Court accepted and rightly so, that the signature was that of respondent no.1. In the cross examination, for the first time, complainant (PW-1) stated that the name, amount and date mentioned in the cheque were not in the hand writing of accused. It is....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... some employee of the accused had written the particulars. He could have stated all this in the complaint or when his examination in chief was recorded. Complainant has not even led evidence to show who was that employee. Complainant only says some employee. It is necessary to note that the Court must be satisfied from the allegations in the complaint and from the evidence adduced that the cheque was made, prepared or created by accused. The Court must be convinced with the order in writing, which is found in the cheque, was made by accused himself or by some other person at the instance of accused or under his instructions. Even if such other person cannot be identified or examined, complainant can still prove execution by circumstantial e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : "42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as,....