TaxTMI 
TaxTMI 
2019 (1) TMI 1774
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....ng cross-examination. 3. Trial Court held the cheque must have been given in the year 1999 (and not in the year 2006) and the complainant must have misused it by filling in details. So also trial Court laid emphasis on evasive answers about the suit during cross-examination. 4. The issue before this Court is whether presumption is said to be rebutted by the accused and whether the trial Court was right in giving benefit to the accused. 5. Questions have arisen in narrow compass. It involves single testimony of the complainant and few documents. Accused neither entered into witness box nor gave any evidence. I have heard Shri B.N. Mohta, learned Counsel for the complainant and Shri A. Shelat, learned Counsel for the accused. They took me through the record. Both have also relied upon few of the judgments. They are on the point of drawing of presumption under Section 139 of the N.I Act and its rebuttal by the accused. RATIOS LAID DOWN IN THE JUDGMENTS: 6. Since incorporation in the statute Book, the issue of drawing of presumption has remained focus of attention in prosecution of cases based on dishonour of cheques. After incorporation of these provisions about criminal prosecu....
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....ll apply these principles to the facts before me. My observations and inferences will be on the basis of evidence before me. On perusal of the impugned judgment, I find a mistake committed by the trial Court in the approach how to appreciate the evidence. Every trial Court is supposed to digest the facts which are proved, give finding thereon and the facts which are not proved and it's consequences. Trial Court has laid down emphasis on fact which are not proved and overlooked to the facts which are proved. APPROACH OF APPELLATE COURT: 11. In a criminal trial, there is presumption of innocence in favour of the accused. This presumption is reinforced when there is judgment of acquittal. So, while dealing with such an appeal, the appellant Court should be cautious in appreciating the evidence. The appellate Court should see whether the evidence is properly marshalled by the trial Court and whether the law interpreted by the Constitutional Court is applied properly/not. The appellate Court should also see whether the findings of the trial Court are perverse or not. CONCLUSION : 12. On reading the evidence and considering the legal principles enunciated above, this Court is o....
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....amination, the complainant expressed ignorance "about repayment of entire amount and its averment in the written statements". Trial Court gave unnecessary weightage to this answer. If the entire amount is repaid, it is for the accused to prove it. This is not the trial involving human conduct to be considered as a factor. The defence of total repayment could have been proved independently. I will discuss this issue in detail while making comment on presumption and its rebuttal. 17. Certified copy of judgment passed ex parte is on record at Exh.45. The suit is for recovery of Rs. 66,000/- (same cheque is there). The suit was decreed due to non-appearance of the accused. There may be steps taken by the accused for setting aside the decree. The findings of Civil Court are relevant to certain extent in criminal trial. But, the Criminal Court can decide the issues independently. However, we can certainly infer that suit is for recovery of Rs. 66,000/- and not Rs. 35,000/-. ISSUANCE OF CHEQUE : 18. Accused has drawn the cheque on UCO Bank (Exh.47). No one can deny that in the date column, year mentioned in 1906 (10/1/1906). The figures '19' is printed and the figures '06&....
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....has got no further importance. This Court feels the accused has failed to rebut the presumption for various reasons. One is, there is theory of repayment of Rs. 35,000/- put forth during cross-examination and it was put in a halfhearted manner. It was also not pleaded in a Section 313 Cr.P.C. statement. The theory of quarrel between his brother and the complainant is unacceptable (answer in statement). There are no details about when the amount was repaid in what manner. Secondly, there was no reply to notice. Thirdly, defence of repayment taken in written statement was not fortified by filing acceptable documents. Fourthly, the accused has never demanded return of cheque after Rs. 35,000/-was repaid by him. 24. The accused has not made out a probable defence. It is nothing but evasive defence. The trial Court has failed to draw inferences on the basis of failure on the part of accused to do above facts. The theory of repayment of Rs. 35,000/- is nothing but after thought theory. Leave apart its proof, it falls short of sufficient details. So, there will only be conclusion that there is no evidence to rebut presumption. I conclude that cheque was issued by the accused for discharg....