TaxTMI 
TaxTMI 
2022 (7) TMI 709
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....shell facts are that appellant - original 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 2....
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....been presented in the bank within six months or within its validity, ii) holder in due course ought to have make demand 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, h....
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....r. 4.8 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, 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 ....
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....ightly acquitted the accused of the charges levelled against him. 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. 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 h....
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....1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.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....
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....ge' 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. (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....
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....0 of the aforesaid decision, which reads as under: "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding 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 ....
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....Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly 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 w....
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....urt should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment 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 s....
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....the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen 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 t....
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....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 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 rebu....
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....eeded in rebutting the presumption, showing preponderance of probability and that the complainant has failed to prove that the cheques were drawn towards legally enforceable debt. Thus, when the complainant has failed to fulfill the initial burden of proving the legally enforceable debt, the presumption against the respondent - accused is justifiably rebutted. 9.1 Considering the oral as well as the documentary evidence on record, following aspects have 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....