TaxTMI 
TaxTMI 
2022 (7) TMI 709
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....complainant - lodged complaints before the Court that the complainant was engaged in the hotel business. That, on coming into contact with the respondent No. 2, who was in requirement of a place for hospital activity and on approach being made to the complainant, the complainant, gave its place (hotel) on rent for conducting such activity to the respondent No. 2 for a period of 10 months for which, different cheques had been issued, which on being deposited in the bank, returned with an endorsement "Account Closed" and hence, the complainant issued legal notices to the respondent No. 2 through advocate by RPAD, which though served upon the respondent No. 2, the respondent No. 2 did not pay the amount and also not replied to the said notice, the complainant was constrained to file complaints before the competent Court at Bhavnagar under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act"). The details of cheques, amount and case number etc. are as follow: Sr. Cr. A. No. C. C. No. Cheque No. Amt. Cheque Issuance date Cheque deposited date Dishonoured on 1. 1587/ 2009 2713/ 2004 2656312 6,00,000/- 28.08.2003 09.02.....
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....emand by giving notice in writing within 30 days on receiving information as to return of cheque and iii) drawer of the cheque should have failed to make payment within 15 days of receipt of such notice, are satisfied and fulfilled by the appellant, however, the learned trial Judge has failed to consider this aspect of the matter in true and proper perspective. 4.3 The learned advocate for the appellant - complainant submitted that the respondent No. 2, in his further statement, had indirectly admitted the transaction between the parties and the amount due, however, the learned trial Judge has erred in appreciating the said aspect. 4.4 The learned advocate for the appellant - complainant further submitted that the learned trial Judge has erred in coming to conclusion that the appellant has failed to prove that the cheques in question were given in discharge of the legal debt. It is submitted that legal notice was given to the respondent No. 2 and evidence, in support of its case was also led, however, the learned trial Judge disbelieved the same and accordingly, has erred materially. 4.5 The learned advocate for the appellant - complainant strenuously submitted that the learned ....
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....at though the case against the accused was proved beyond reasonable doubt, the learned trial Judge 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 appeals may be allowed by quashing and setting aside the impugned judgments and orders of acquittal. 4.9 In support, the learned advocate for the appellant - complainant has relied upon following decisions: i) Sarathi Leasing Finance Ltd. v. Sri B. Narayana Shetty, 2006 SCC Online Kar 124; ii) Geekay Exim (India) Ltd. and Others v. State of Gujarat and Others, MANU/GJ/0023/1997. 5. Per contra, learned advocate Mr. V. A. Mansuri for the respondent No. 2 - accused, while supporting the impugned judgments and orders of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views are pos....
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.... Court and eventually, it is urged that the present appeal may be dismissed. 6. The Court has also heard the learned APP for the respondent No. 1 - State. 7. The Court has considered the rival submissions made by the learned advocates for the respective parties and also gone through the impugned judgment and order of the trial Court as well as the material on record. 7.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court. 7.2 Further, if two reasonable c....
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....P.C. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Sing....
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....er, 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. (5) 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." 16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate th....
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....nding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of....
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.... proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording 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, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should b....
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....udgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to h....
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....n days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] 8.1 Thus, in the case under NI Act, the 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. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. It is observed by the learned trial Judge that in the present case, the complainant has not produced any documentary evidence to prove his case and hence, it cannot be believed that the complainant had a legal dues from the respondent - accused. In the overall facts and circumstances of the case, the learned trial Judge has come to the conclusion that the debt cannot be said to ....
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....s 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 defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 23.5. It is not necessary for the Accused to come in the witness box to support his defence." 8.2.1 Thus, 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. 8.3 Further, in the decision in Krishna Janardhan Bhat v. Dattaraya G. Hegde, passed in Appeal (Cri.) 518 of 2006 on 11.01.2008, wherein the Apex Court has observed thus: "The proviso appended to the said section provides for compliance of legal requirements be....
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....ve been weighed by this Court: i) admittedly, the complaint is filed on behalf of the company by Pankajbhai Dhirajlal Varia and no authorization letter is produced on record; ii) there is nothing on record to show the privity of contract between the company and the accused; iii) as per the deposition (cross-examination) of Pankajbhai Dhirajlal Varia, the contract/agreement was entered into by him in personal capacity; iv) no notice/communication is there on record to show outstanding rent on the part of the accused; v) there is nothing on record to show that the cheques had been issued for such debt/legally enforceable debt of the company and/or Pankajbhai Dhirajlal Varia; vi) as per the case of the appellant, the accused has admitted the dues of the company in his further statement, however, Pankajbhai Dhirajlal Varia also admits in his deposition that contract/agreement was made in his personal capacity; vii) no register and/or books of accounts and/or receipts,etc. have been produced on record so as to show that any transaction has been entered into between the parties except bare words; vii) there is nothing on record that with a view to avoid the payment....