TaxTMI 
TaxTMI 
2023 (8) TMI 841
X X X X Extracts X X X X
X X X X Extracts X X X X
....parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of convenience. 3. The appellant herein, in the capacity of the complainant before the trial Court filed a complaint under Section 138 of N.I. Act. 4. The case of the complainant is that A. 1 and A.2 borrowed Rs. 3,00,000/- each from the complainant on 27.03.2011, agreeing to repay the same with interest at 18% per annum, and they executed Ex.P1 and Ex.P2 Promissory notes respectively. On 03.02.2013, A. 1 and A.2 issued Ex.P3-Cheque bearing No. 401701 for Rs. 6,00,000/- towards part payment, drawn on Axis Bank Limited, Kakinada, in favour of the complainant. On being presented with the Cheque by the complainant, the same was dishonoured and returned with Ex.P4 cheque return memo with an endorsement "payment stopped by the drawer". Later, on 04.03.2013, the complainant got issued Ex.P5 legal notice to the accused, for which the accused gave a reply on 14.03.2013 under Ex.P6, but the accused did not pay any amount and kept quiet. Hence, the complainant filed a complaint against the accused. 5. The learned V Additional Judicial First Class Magistrate at Kakinada to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itting the accused solely on the basis is unlawful. 9. Per contra, Sri M.V. Suresh, learned counsel appearing for the respondents/accused 1 & 2, would contend that the learned Additional Sessions Judge correctly acquitted the accused 1 and 2 for the offence under Section 138 of N.I. Act. The reasons given by the learned Judge require no interference. 10. Now, the point that arises for determination is: Did the learned Additional Sessions Judge commit any error in acquitting the accused 1 and 2 for the offence punishable under section 138 of the N.I Act? POINT: 11. The scope of interference in an appeal against Acquittal has been gone into by the Hon'ble Supreme Court in Jaswant Singh v. State of Haryana AIR 2000 SC 1833, wherein it was observed as under:- "21. The principle to be followed by appellate courts considering an appeal against an order of Acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is unreasonable, it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra 1973 CriLJ 1783). The principle was elucidated in Ramesh Babulal Doshi v. State of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve committed the offence if the following ingredients are fulfilled: (i) A cheque drawn for the payment of any amount of money to another person; (ii) The Cheque is drawn to discharge the "whole or part" of any debt or other liability. "Debt or other liability" means legally enforceable debt or other liability; and (iii) The Cheque is returned by the bank unpaid because of insufficient funds. However, unless the stipulations in the proviso are fulfilled, the offence is not deemed to be committed. The conditions in the provision are as follows: (i) The Cheque must be presented in the bank within three months from the date on which it was drawn or within the period of its validity; (ii) The holder of the Cheque must make a demand for the payment of the "said amount of money" by giving a notice in writing to the drawer of the Cheque within thirty days from the receipt of the notice from the bank that the Cheque was returned dishonoured; and (iii) The holder of the Cheque fails to make the payment of the "said amount of money" within fifteen days from the receipt of the notice. 14. The complainant was examined as P.W. 1 and go....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise that it is supported by consideration. Such a presumption is rebuttable. It is further held that the burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probability by reference to the circumstances upon which he relies. It is further held that the bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. It is further held that it is true that the plaintiff had produced evidence, and the evidence was, in fact, the evidence in rebuttal of the evidence produced by the defendant in the case. Even though it is true that the plaintiff's evidence was not believed yet, the same could not be made the basis for rejecting the claim because the obligation upon the plaintiff to lead evidence to prove his case could not have been insisted upon because the defendant has prima-facie or initially in not discharge his onus of proof by showing directly or probabalizing the existence of non-consideration". 19. It is not in dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 401701 on 30.07.2011 itself. Considering this evidence, it becomes highly unlikely to accept the complainant's statement that the accused issued the disputed Cheque, i.e. Ex.P3, on 03.02.2013. 23. D.W. 1 had provided a clear account of the circumstances that led him to make the request to the bank. According to his testimony, he regularly paid interest to the complainant based on the transactions vide Exs. P1 and P2. On 11.02.2011, he received retirement benefits totalling Rs. 10,00,000/- and more. Out of the retirement benefits, he settled the loan amount owed to the complainant. To substantiate the defence, the accused referred to Ex.D1, an entry dated 11.02.2011 found in the joint passbook of the accused. This entry indicates that Rs. 10,06,929/- was available in their bank account. Additionally, Ex.D2, an Entry dated 25.02.2011, shows an amount of Rs. 1,00,000/- available in the said joint passbook. Furthermore, Ex.D3, an account copy provided by the Branch Manager, outlines the account details of the accused from 30.04.2010 to 03.02.2015. 24. As per D.W. 1's version, he retired from the service on 30.06.2010. Ex.D3 indicates that at the time of transactions detailed in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mount around the time of Exs. P1 and P2. As previously noted, the available evidence indicates that the accused held more than Rs. 7,00,000/- in their account at the time of the promissory note transactions. Ex.D3's account entries reveal that starting from 18.10.2010, an amount exceeding Rs. 7,00,000/- was present in the Savings Bank account of the accused individuals until 03.02.2015. Commonly, Savings Bank accounts offer interest rates ranging from 5% to 6%. It becomes difficult to accept the complainant's argument that in 2011, the accused borrowed Rs. 6,00,000/- from her with an agreement to repay at an interest rate of 18% per annum. In reality, if the accused needed funds, they could have withdrawn the necessary amount from their Savings account to fulfill their needs. It would be unusual for them to resort to borrowing with the stipulation of paying 18% interest per annum. 26. Regarding P.W. 1's financial capacity, she mentioned during her cross-examination that they do not possess any house or properties in Kakinada. She currently resides in a rented house. Additionally, she acknowledged that she did not file any suit based on Exs. P1 and P2, the promissory ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... interpretation gains credibility given the lack of evidence regarding her lending capacity and the absence of an explanation for not filing a recovery suit. 29. The evidence of P.W. 1 shows that A. 1 and A.2 are not relatives, they do not belong to her caste, and she does not know when A. 1 retired from the service. In the facts of the case, it is difficult to believe the lending of huge amounts to the accused. 30. The available evidence clearly indicates that the accused had no compelling need to borrow the specified amount, considering that they possessed Rs. 7,00,000/- in their bank account at the time of the Exs. P1 and P2 promissory note transactions. The complainant has not provided a satisfactory explanation or demonstrated the source of her income that would enable her to lend such a substantial sum to the accused. The accused have presented substantial evidence before the Court, and based on this, the complainant's assertion that they issued a cheque on 03.02.2013 is proven to be inaccurate. The evidence adduced supports the view that the accused's version is more likely and credible in this context. 31. It is a cardinal principle of criminal jurisprudenc....