TaxTMI 
TaxTMI 
2022 (7) TMI 1491
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....ell are that complainant - Bhagvandas Gangarambhai, original accused Pradipkumar Hargovindbhai Patel and others jointly decided to purchase a land belonged to Jain Mahajan Trust, Palanpur. In the said land, the complainant had 30% share i.e. 22710 sq. mtrs. of land, which the accused decided to purchase from the complainant and an agreement, Exh. 29 to that effect was also entered into between them on 10.11.1997 for a sale consideration of Rs.5,70,620/-. Out of the said amount, the respondent - accused paid Rs.3,09,000/- and for rest, the accused issued cheques, respectively dated 02.01.1998 and 02.02.1998 for Rs.1,86,540/- each. However, on 04.06.1998, when the complainant deposited the cheques in the Union Bank, Palanpur, the same were returned by the bank with an endorsement "Stop Payment". On enquiring with the bank, the complainant allegedly found that, in fact, no sufficient fund was there in the account of the accused. Accordingly, the complainant issued a legal notice dated 17.06.1998 under the provisions of the NI Act, which was served upon the respondent - accused, who replied the said notice on 17.07.1998. Since the respondent No. 1 did not pay the cheque amounts, the co....
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....ntion of the cheques in the said agreement. 3.2 The learned advocate for the appellant submitted that in fact, no sufficient amount was lying in the bank account of the respondent - accused and hence, with mala fide intention, stop payment of cheques was made. In her submission, the learned Sessions Judge ought to have held, in view of the evidence on record, that the accused had failed to rebut the onus of proof and statutory presumption against him under Sections 118(a) and 139 of the NI Act. 3.3 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, however, the learned Sessions Judge has not properly appreciated the evidence on record and thereby, has committed an error in reversing the judgment and order of the trial Court and recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, she urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. 3.4 In support, t....
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....he respondent No. 1 has heavily submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and therefore, the learned Sessions Judge has rightly acquitted the accused of the charges levelled against him. 4.3 It is submitted that when the agreement, Exh. 29 was executed, it was made to understand that the property belonged to the appellant - complainant having 30% share in the same. Accordingly, the respondent No. 1 decided to purchase the same and also made the part payment and for rest, issued cheques in question. However, subsequently, it came to the knowledge of the respondent No. 1 that the property was of the Jain Panjrapol Trust and the appellant had no right/title in the same. Further, it was learnt that the said trust had neither sold nor agreed to sale the land in question in favour of the appellant - complainant. Accordingly, on realizing that the respondent No. 1 was cheated and the complainant breached the trust, he got the payment stopped. He submitted that, attention was also drawn of the complainant in that regard and also demanded the cheques back, but the complainant sought time to return and then, deposited ....
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.... 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 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) ....
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.... Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor 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....
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....han v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing 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 ....
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....to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: "31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (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 w....
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....y no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court 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 unsustainab....
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....nciples in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the 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 ano....
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....e of the complainant was 30%. The complainant allegedly sold the said land (30% share) to the respondent No. 1 for which, an agreement, Exh. 29 was executed between them. That, the respondent No. 1 also made part payment of Rs.3,09,000/- and for rest, he issued cheques in favour of the complainant. The said cheques were dishonoured when presented in the bank on account of stopped payment. Accordingly, the complaint in question came to be filed as the respondent No. 1 did not pay the outstanding amount. 7.3 Whereas, as the per the case of the respondent No. 1, he intended to purchase the land in question and accordingly, made the part payment and for the rest, issued cheques in question, however, as soon as he came to know about the land being not belonged to the complainant, he approached the complainant, however, thereafter, the complainant initiated the proceedings in question. In the submission of the respondent No. 1, since, the agreement itself is invalid as being without consideration, there is no question of debt being legally enforceable debt. Further, the respondent No. 1 has gained nothing out of such a transaction. 7.4 From the facts and record, following salient p....
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....avour of the complainant is rebuttable and standard of proof is preponderance of probability; ix) the complainant appears to have failed to discharge the initial burden to prove his case. 7.5 Accordingly, when the transaction is without any consideration, it cannot be said that there was legal dues of the complainant. There appears nothing on record to substantiate the claim of the complainant that the debt was legally enforceable debt for want of any material to substantiate the same and therefore, in the overall facts and circumstances of the case, the learned Sessions Judge has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt and in view of the aforesaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Sessions Judge. 7.6 So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (2019) 5 SCC 418, wh....
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.... 7.8 On re-appreciation and reevaluation of the oral and the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned Sessions Judge has meticulously considered the evidence and came to such a conclusion and in the considered opinion of this Court, the learned Sessions Judge has rightly come to such a conclusion, which does not call for any interference at the hands of this Court. 8. The Court has gone through the decisions relied upon by the learned advocate for the appellant - original complainant, which are 15 in number. A perusal of the same reveals that they are mainly on the aspect of presumption under Section 139 of the NI Act, which is indisputably rebuttable one. There cannot be dispute as regards to ratio laid down in the same, nonetheless, as discussed herein above in detail, the debt is not proved to be the legally enforceable debt. Further, the respondent - accused has succeeded in rebutting the presumption against him, ....