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2023 (5) TMI 929
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....a De, took a sum of Rs. 8,60,000/- from the Appellant as loan. Soumen De issued a cheque vide No. 612517 dated 2nd January, 2003 drawn on State Bank of India, Esplanade Branch in discharge of their liability to repay the same. The cheque was presented to the State Bank of Hyderabad, Sarat Bose Road Branch which was returned dishonoured for insufficient fund. Statutory notice was given to the drawer of the cheque under Section 138 (b) of the NI Act, by the holder of the cheque, the Appellant herein, calling upon the drawer to pay the said money, but it was not adhered to. Hence, the petition of complaint was filed under Section 138 of the NI Act. 3. Learned trial court after complying with the provision of section 200 of the code of criminal procedure, issued process upon the accused persons who surrendered to the jurisdiction of learned trial court. Accused Soumen De stood the trial pleading his innocence 4. The complainant adduced evidence as PW-1 and he stood the test of cross-examination. In course of cross-examination he produced three documents admitted as exhibits-A, B and C. Those three documents substantiate the claim of the complainant that a sum of Rs. 8,60,000/- wa....
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....de of Criminal Procedure. Learned Trial Judge did not follow the procedure as laid down under the Code of Criminal Proceeding. The omissions and infractions, as aforesaid, vitiates the trial. 11. According to Mr. Roy, learned trial court was justified in recording an order of acquittal for the simple reason that the complainant failed to establish that he had sufficient fund to give a sum of Rs. 8,60,000/- to the accused person. As he failed to prove the source money, adverse presumption was the natural consequence and learned Trial Court was absolutely justified in passing the judgement impugned. 12. To buttress his point, Mr. Roy places reliance upon the judgement of Hon'ble Apex Court pronounced in BASALINGAPPA VS. MUDIBASAPPA reported in 2019 (5) SCC 418 wherein it is held:- "23. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:- (i) 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. (ii) The presumption under....
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....en on the complainant to prove his financial capacity and other facts." 13. According to Mr. Roy, the accused person was not even examined under Section 313 of the Code of Criminal Procedure properly and for that reason also prejudice was caused to him as he did not have the opportunity to explain the incriminating circumstances. 14. True it is the learned Trial Court failed to exercise the jurisdiction vested upon the Court properly when the accused person was examined under Section 251 of the Code of Criminal Procedure. In this regard, it is pertinent to point out that by the order dated 20th April, 2011, the case was filed against Paramita De for the present as requisites for warrant of arrest was not filed. On 24th August, 2011 learned Magistrate, as it appears from the order sheet itself, examined accused persons and in the judgement learned Trial Court indicated that case was filed against Paramita De. The object of Section 251 is to make the accused person understand why he is being prosecuted. Under Section 251 of the Cr.P.C. the accused person should be made to understand the accusation of offence. In this case learned Trial Court was under the obligation to narrate ....
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....t with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Viewed in the context of the above observations of this Court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the Courts below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross examined at length from all possible angles and the suggestions that were put forward to the eye witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149 IPC. For....
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....ause I had no liability to repay the amount in the alleged cheque. My ex wife said that she will take care of the matter.'' It is further evidence which he voluntarily stated during cross-examination "Some blank stamp papers and cheque signed by me were kept in custody of my ex-wife. It is fact that all documents cheques etc. that were used, were in the year 2003. I have not lodged any complaint/diary before the local police station stating that blank cheques and stamp papers bearing my signature have been used by my wife. It is fact that I have not prayed for issuing any such warrant before this court for recovery of said blank cheques and stamp papers bearing my signature that where in the custody of my ex-wife.(Voluntarily says) This is because my ex-wife stated that she will look after the matter." The stand taken by the accused person, in my humble opinion, appear to be mutually contradictory. If the loan is taken by his wife and his wife assured him that she would take care of the issue of repayment of loan, it indicates that the complainant had the capacity to accommodate the accused person or his wife and to pay a sum of Rs. 8,60,000/- towards loan, as claimed b....
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....on 138 of the N.I. Act, a cheque which is dishonoured, will have to be drawn by a person on an account maintained by him with the 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. It is only such a cheque which is dishonoured would attract the provisions of Section 138 of the above Act against the drawer of the cheque. 22. The accused person tried to disown his liability by taking the plea that since it was his ex-wife who took the loan and assured him that she would take care of the loan, the cheque under his signature is of no consequence. This proposition is utterly contrary to the well settled principle of law. In this regard we can profitably use the judgement of Hon'ble Apex Court pronounced in the case of Aparna A. Shah v. Sheth Developers (P) Ltd., (2013) 8 SCC 71, P.J. Agro Tech Ltd. v. Water Base Ltd., (2010) 12 SCC 146. 23. In order to constitute an offence under Section 138 of the NI Act, Hon'ble Apex Court in JUGESH SEHGAL V. SHAMSHER SINGH GOGI reported in (2009) 14 SCC 683 noted the following ingredients which are required to be fulfilled: (SCC pp. 687-88, ....
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.... petition of complaint was fait accompli. From the trend of cross-examination of the complainant, PW1 and from the testimony of DW1 it appears that the accused person wanted to create a doubt in the mind of learned trial court and I have no hesitation to say that it was done quite successfully. The impugned judgement demonstrates that the learned trial court decided the issue as if the complainant/appellant had the obligation to prove his case beyond reasonable doubt. This approach of the learned trial court was absolutely erroneous. 26. Hon'ble Apex Court in ROHITBHAIJIVANLAL PATEL V. STATE OF GUJARAT, reported in (2019) 18 SCC 106 held:- "21. On perusing the order of the trial court, it is noticed that the trial court proceeded to pass the order of acquittal on the mere ground of "creation of doubt". We are of the considered view that the trial court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of the NI Act. In the scheme of the NI Act, mere creation of doubt is not sufficient." 27. It is trite to say that an accused in a trial ....
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.... SCC 415, this Court held: "(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 powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" 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 jurispruden....
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....du Mohton & Ors. v. State of Bihar : 1970 (2) SCC 450. 20. In a very recent judgment a Bench of this Court in the case of Arulvelu & Anr. v. State represented by the Public Prosecutor & Anr. : 2009 (10) SCC 2006, while referring with approval the judgment of another equal (Division) Bench in the case of Ghurey Lal v. State of U. P. : 2008 (10) SCC 450 and relying upon various judgments of the court stated the following principles : "34 In Ghurey Lal v. State of Uttar Pradesh [(2008) 10 SCC 450] a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquit- ted the accused. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence....
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.... record, High Court was justified in reversing the judgment of acquittal and convicting the accused of an offence under Section 307 of the Code. conviction - the High Courts/appellate courts must rule in favour of the accused." 32. It goes without saying that an accused person is presumed to be innocent unless proved guilty and an order of acquittal strengthens such presumption in favour of the accused person but the same rule cannot be made applicable with same rigour while dealing with an offence under section 138 of the NI Act, where a presumption is available that the holder of the cheque received the cheque for the discharge of any debt or liability either wholly or in part. This presumption is rebuttable. The accused person has failed to rebut such presumption. 33. As I have discussed hereinbefore, learned trial court committed grave mistake in recording an order of acquittal, upon absolute misreading of not only the evidence on record but also upon erroneous understanding of statutory provision of law as laid down under section 138 of the NI Act. Learned Trial Court even after drawing up presumption, proceeded with the view that the complainant was to prove the case be....