TaxTMI 
TaxTMI 
2021 (12) TMI 234
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.... his account and thereby, the respondent No. 1 had availed Rs. 10,57,190/- from the complainant and was legal due to the complainant. On demanding such money, the respondent No. 1 issued a cheque bearing No. 404385 dated 16.05.2003, drawn on the Union Bank of India, Dhanlaxmi Market, Revdi Bazaar, Ahmedabad for Rs. 10,57,190/- and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 16.05.2003, the complainant deposited the cheque in the Nagrik Sahakari Bank, Maskati Market, the same was returned by the bank with an endorsement "Account Closed". Accordingly, the complainant issued a legal notice dated 22.05.2003 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act"), which was served upon the respondent No. 1 on 28.05.2003. Since the respondent No. 1 neither replied to the said notice nor paid the cheque amount, the complainant constrained to file the complaint under Section 138 of the NI Act before the learned Metropolitan Magistrate Court, Ahmedabad. 2.1. Upon such complaint being filed and subsequent service of summons upon the respondent No. 1, he appeared befor....
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....d stopped the accused from questioning the legality of the cheque. It is submitted that if the said fact is accepted, then the proof of legality of the cheque runs concurrently with the fact of legal debt. In his submission, the learned Magistrate ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him under Sections 118(a) and 139 of the NI Act. 3.2. The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt, however, the learned Magistrate has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. 3.3. In support, the learned advocate for the appellant has relied upon following decisions: 1) Laxmi Dyechem v. State of Gujarat an....
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.... the respondent No. 1 and in the circumstances, the learned Magistrate has rightly observed that the complainant has failed to prove the "legally enforceable debt" and has rightly applied the decision of the Apex Court in M.S. Narayana Menon (supra). It is also submitted that the bank account had already been closed and that, the handwriting on the cheque in question was also not of the respondent No. 1 and in the circumstances, the learned Magistrate has rightly disbelieved the case of the complainant. It was also submitted that the complainant has also failed to prove or produce any documentary evidence as regard he was having licence to provide services related to financing. 4.4. The learned advocate for the respondent No. 1-accused further submitted that the learned Magistrate has rightly acquitted the accused as the complainant failed to bring home the charge against the accused. Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be dismissed. 4.5. In support, the learned advocate for the respondent No. 1 has relied upon following decisions: 1) Krishna Janardhan Bhat v.....
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....t upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 5.3. In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court". 5.4. Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of....
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....iple of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala: (1998) 5 SCC 412, Bhagwan Singh v. State of M.P. (2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka: (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(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, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powe....
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....rd; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect 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. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reaso....
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....in para 10 as under: (SCC p. 233) "10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case." 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that ....
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....ned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this ....
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.... duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." (emphasis supplied)." 6. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to one year. Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it i....
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....munication also. The learned advocate for the appellant, referring to paragraph 8 of the impugned judgment, has submitted that the learned Magistrate has accepted the fact of cheque in question was issued by the respondent No. 1, however, in view of Section 4 of the Evidence Act, has committed error in not believing the debt to be the legally enforceable debt. The fact remains that there appears nothing on record to substantiate the claim of the complainant that the debt was legally enforceable debt for want of any material to substantiate the same and therefore, in the overall facts and circumstances of the case, the learned Magistrate has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt and in view of the aforesaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Magistrate. 6.2. So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibas....
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....inant. 6.4. On re-appreciation and reevaluation of the oral and the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned Magistrate has meticulously considered the depositions of all the witnesses and came to such a conclusion and in the considered opinion of this Court, the learned Magistrate has rightly come to such a conclusion, which do not call for any interference at the hands of this Court. 7. If the decisions relied upon by the learned advocate for the appellant-original complainant are referred to, in Laxmi Dyechem (supra), the Court has held that, "Two contingencies required to constitute offence under Section 138. First contingency "either because of the amount of money standing to the credit of that account is insufficient to honour the cheque", held, is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer", "signatures do not match" or "image is not found", are only....
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....ver, the presumption is rebuttable by proving to the contrary. Section 139 introduces and exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough". In the case on hand, from inception, it was the case of the respondent No. 1 that account was already closed much prior to deposition of cheque by the complainant in the bank. Further, as emerges from the record, more particularly, from the document at Exh. 12, which is the copy of bank statement, the bank account of the respondent No. 1 was already closed in February 2003, to be precise on 28.02.2003 only. Indisputably, the complainant has deposited the cheque in question on 16.05.2003, which was dishonoured with an endorsement "Account Closed". Thus, the respondent No. 1 appears to have rebutted the presumption under the provisions of Section 139 of the NI Act besides the fact that, the debt is not proved to be the legally enforceable debt. Thus, the aforesaid decision also, would be of no help to the complainant. 7.3. In NEPC Micon Ltd. and Others (supra), the Court has held that....