TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 291
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....t Ext. P4 notice demanding payment was not heeded to and therefore the accused committed an offence punishable under Section 138 of the N.I. Act. 4. PW1, PW2 and PW3 were examined on behalf of the complainant and Exts.P1 to Ext. P5 were marked. DW1, DW2 and DW3 were examined on the side of the defence and Exts. D1 to Ext. D6 were marked. 5. The court below on appreciation of the evidence found that the complainant failed to prove the execution and delivery of Ext. P1 cheque and that the case put forward by the accused is more probable and believable and, hence, no offence under Section 138 of the N.I. Act was made out. Accordingly, the accused was acquitted under Section 255(1) of Cr.P.C., as per the impugned judgment. Challenging the said judgment, the complainant preferred this appeal. 6. Heard both sides. 7. The learned counsel for the appellant submitted that the complainant has succeeded in proving the execution of Ext. P1 cheque by examining PW1, PW2 and PW3 and, hence, presumption under Section 139 of the N.I. Act would come into play and the accused has failed to rebut the said presumption. The court below went wrong and committed illegality in acquitting the accused, a....
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....ppellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. ....
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.... an error of law or fact significant enough to necessitate overturning the verdict of the Trial Court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation". In Minal Das and Others v. State of Tripura, ( (2011) 9 SCC 479), the Supreme Court held as follows: "14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interf....
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....vour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court". In Phula Singh v. State of H.P(JT 2014 (3) SC 545) it was held that in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. Recently in the Supreme Court in Muralidhar v. State of Karnataka (AIR 2014 SC 2200) it was held: "In dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii)....
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....as outrageously defies logic as to suffer from the vice of irrationality. Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances and the judgment under the appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. Interference in routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 10. Bearing in mind the above mentioned legal principles, let me analyze the evidence given by the prosecution witnesses to ascertain whether the decision of the lower court is based on erroneous views, against settled position of law or the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, leading to the miscarriage of justice. 11. As stated already, the case of the complainant is that the accused borrowed a sum of Rs. 60,000/- from him and in discharge of the said debt, Ext. P1 cheque was issued. The defence set up by the accused is that on 06.07.2006 he borrowed a sum of Rs. 30,000/- from the complainant, at that time, at the instance of the....
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....l evidence of DW1 and DW2, that Ext. P1 cheque was presented for encashment in the account of the accused for Rs. 30,000/- on 06.07.2006 and it was honoured on 11.07.2006. Two more witnesses were examined to prove the transaction and the execution of the cheque, PW2 and PW3. PW2 is an employee of the complainant and PW3 is the wife of the complainant. Even though PW2 deposed that he was present at the time of alleged transaction, neither the complainant nor PW3 stated about the presence of PW2. PW3 being the wife of the complainant, is an interested witness. She deposed that the transaction took place in her presence but the complainant or PW2 did not state anything regarding the presence of PW3 at the time of transaction. Hence, the evidence of PW2 and PW3 will not help the complainant to prove the transaction or the execution of the cheque. All these evidence on record show that the case set up by the accused is more probable. 12. The learned counsel for the appellant has relied on three decisions of the Supreme Court in Kumar Exports v. Sharma Carpets [ (2009) 2 SCC 513], Hiten P. Dalan v. Bratindranath Banerjee [(2001) 6 SCC 16] and Rangappa v. Sri Mohan [ (2010) 11 SCC 411] a....