TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 1208
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..... Bank Ltd., Prantij Branch of Account No. 8091, which, the complainant presented in bank, but the same was returned by the bank with an endorsement "Account Closed" and hence, the complainant issued a legal notice dated 07.12.2014 to the respondent No. 2 through his advocate by RPAD and UPC, which though served upon the respondent No. 2 on 11.12.2014, the respondent No. 2 did not repay the said amount and gave vague reply on 15.12.2004, the complainant was constrained to file complaint before the competent Court at Prantij under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act"). 2.1 Upon such complaint being filed and subsequent to service of summons, the respondent No. 2 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. In support, the appellant - complainant has produced oral as well as documentary evidence. Vide impugned judgment and order dated 10.06.2014, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal. 3. Heard, learned advocate Mr. Yatin Soni for the appellant - original comp....
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....l and rest Rs.14 lakh, he had arranged from his personal savings and accordingly, the amount in question was very well explained, however, the learned trial Judge has disbelieved the same and observed that considering the status of the appellant - complainant as Secretary and his salary of Rs.1,000/- per month as well as the income from agriculture which is maximum Rs.4 lakh, the same raises doubt as regards lending of such a huge amount to the respondent - accused. The learned advocate for the appellant - complainant also submitted that the learned trial Judge also erred in observing that the appellant - complainant has not disclosed such income before the Income Tax Department nor has produced any books of accounts and thereby, has failed to appreciate the fact that agriculture income is exempted under the Income Tax Act. 3.5 The learned advocate for the appellant - complainant further submitted that as per the case of the respondent - accused, he had issued the cheque as one Kodarbhai had borrowed Rs.10,000/- because of illness of his son, against security, on behalf of Kodarbhai. However, it cannot be believed that the respondent - accused, who was serving as an Inspector, wou....
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.... 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality. 4.1 The learned advocate for the respondent No. 2 - accused submitted that for invoking the provisions of Section 138 of the NI Act, the debt or other liability means a legally enforceable debt or other liability, which the complainant has failed to prove and accordingly, the learned trial Judge has rightly recorded acquittal. She streneously submitted that at the relevant time, the income of the appellant - complainant, admittedly was Rs.1,000/- per month. Further, he had an agriculture income ranging from Rs.2.5 lakh to Rs.4 lakh per annum, however, there are other family members also and accordingly, the learned trial Judge has rightly raised suspicion as to saving of such amount by the complainant and lending the huge amount to the respondent - accused. Further, it is the case of the appellant - com....
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....ess the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse. 6.3 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast 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. 6.4 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....
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....AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." 14. The aforesaid principle 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....
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....inting out the finger towards the accused." 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (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 exceptio....
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....ai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held 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 reappreciation of the entire ....
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.... has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case." 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned 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 disc....
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....he entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." (emphasis supplied)." 7. 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 ....
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....ion of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (2019) 5 SCC 418, wherein, the Court has observed as under: "23. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 23.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 23.2. The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 23.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the complainant in order to raise a probable 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. 23.4. That it is not necessary for the Accused to come in the witness box in support of his defe....
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....g of Rs.20 lakh to the accused. Referring the document at Exh. 50, the learned trial Judge has observed in para 18 of the impugned judgment that it is specifically mentioned therein that the accused had never taken, either from the mandli or from the complainant personally, any amount nor any outstanding was there from the accused. It is also observed by the learned trial Judge that if at all the said certificate was issued in the capacity of Secretary of the mandli only, the complainant could have made mention of the mandli only and not as regards any personal transactions. Thus, considering all these aspects of the matter, the learned trial Judge has come to a conclusion that the accused has succeeded in rebutting the presumption, showing preponderance of probability. 7.4 On re-appreciation and reevaluation of the oral as well as the documentary evidence on record, following aspects have been weighed by this Court: i) the complainant stated to have given Rs.20 lakh to the respondent - accused, however, except bare words, there is nothing on record to show that such a big amount was given to the respondent - accused; ii) there is also nothing on record to show as to how the ....
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....has meticulously considered evidence on record and come to such a conclusion. 8. The Court has gone through the decisions relied upon by the learned advocate for the appellant and the respondent - accused. In the decision in Bir Singh (supra), the Court has held that, "Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces an 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 - accused that he had not taken any such amount from the appellant - complainant. Even he has replied the legal notice of the complainant in which also, he has taken such a stand, which is consistent. Further, the complainant is not in a position to explain with any cogent evidence as to the arrangement of such ....
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....ter was that the complainant failed to establish the source of funds which he is alleged to have utilized for the disbursal of the loan of Rs.15 lakhs to the appellant". It is further observed that, "His defence that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of acquittal passed by the first appellant Court was justified". Accordingly, the Court restored the order of acquittal. In the case on hand also, the complainant has failed to discharge the initial burden of proving the legally enforceable debt. Moreover, the complainant has also failed to establish the source of funds with cogent evidence. Further, as said in the earlier part of the judgment, the respondent has successfully raised the probable defence. 10. At this juncture, it would be apt to refer to a decision of the Apex Court in Krishna Janardhan Bhat v. Dattaraya G. Hegde, passed in Appeal (Cri.) 518 of 2006 on 11.01.2008, wherein the Court has observed thus: "The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of ....