TaxTMI 
TaxTMI 
2022 (5) TMI 305
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....the appellant to the respondent No. 2. In return the appellant asked to do the registered banakhat of the house of the respondent no 2, for which he denied and changed his mind for not selling his home and gave a cheque of Rs. 4,00,000/- to clear the debt. 2.1. The said cheque given by the respondent No. 2 was presented in Bank of India by the appellant and the same was bounced on 28/1/2014. Therefore, the appellant send a legal notice to the respondent No. 2 on 14/2/2014 through R.P. AD. The said notice was received by the respondent No. 2 on 15/2/2014. 2.2. As there was no reply from the respondent No. 2, the appellant-filed a complaint on 24/3/2014 u/s. 138 of The Negotiable Instruments Act in against of the respondent No. 2 for the disputed amount of Rs. 4,00,000/- before the JMFC Court of Kalol. 2.3. The respondent No. 2 has been acquitted by the learned trial court. Being aggrieved and dissatisfied by the aforesaid judgment and order of acquittal, the appellant has preferred the present Appeal. 3. Mr. Harik Barot, learned advocate for the appellant-original complainant has submitted that the impugned judgment and order passed by the trial court is illegal, erroneous, cont....
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....sed and the said story not proved and not acceptable in the eyes of law. 3.7. Mr. Harik Barot, learned advocate for the appellant has submitted that for what security purpose he had given the cheque to the appellant is not mentioned and no reason, disclosure or explanations is shown on the records. 3.8. Mr. Harik Barot, learned advocate for the appellant has submitted that looking on the whole case, there is not a single evidence on the records which can establish that the appellant has misused the cheque of the respondent No. 2 and if he had misused it, then when, why and how? The same is not proved. 3.9. Mr. Harik Barot, learned advocate for the appellant has submitted that no complaint made before concerned police station or court by the accused for lost, stolen or theft of the cheque or demanding the cheque back. 3.10. Mr. Harik Barot, learned advocate for the appellant has submitted that the accused had failed with cogent evidence and has not rebutted the presumption as per section 139 of the Negotiable Instruments Act. 3.11. Mr. Harik Barot, learned advocate for the appellant has relied upon the decision in the case of Rangappa Vs. Mohan, reported in 2010 (3) Crimes (SC)....
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..... Neeraj Soni has submitted that according to the appellant, he has paid Rs. 4,00,000/-, Rs. 1,25,000/- by cheque and Rs. 2,75,000/- in cash. The appellant needs to prove that the same is received by the accused. However, following facts categorically establish that the appellant has not discharged his burden to prove his case. 4.2. Mr. Neeraj Soni has submitted that the appellant ought to have placed on record bank entry of alleged three cheques given by him to the accused and the same is debited from the account of the appellant. It can be examined from two sets of evidence, namely, income tax returns, account statement. 4.3. Mr. Neeraj Soni has submitted that Income-tax Return does not depict any debt much less of the amount lent to the accused. 4.4. Mr. Neeraj Soni has submitted that secondly, account statements produced by the appellant do not reflect any amount borrowed by the applicant except page 141. However, said account is probably in the name of the wife of the appellant and the statement does not mention anything to reflect that the same was even a joint account of the appellant and of his wife. 4.5. Mr. Neeraj Soni, learned advocate for the respondent No. 2 origin....
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....0 15 SCC 348 in support of his submission that the presumption is rebuttable; and on the issue of preponderance of probabilities and legal debt. 4.11. Mr. Neeraj Soni, learned advocate for the respondent No. 2 original accused has relied upon the decision in the case of M.S. Narayana Menon @ Mani Versus State of Kerala, reported in 2006 (6) SCC 39 in support of his submission that the cheque is issued for security or for any other purpose, the same would not come within the purview of Sec. 138 of the Act; where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. 5. By making above submissions and relying upon above decisions, Mr. Neeraj Soni, learned advocate for the respondent has requested not to disturb the impugned judgment and order and dismiss the appeal. 5. Heard the learned advocates for the respective parties and gone through the impugned judgment and order of the trial court as well as the entire material on record. 6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court ha....
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....e Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:- "6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632: "8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh....