TaxTMI 
TaxTMI 
2024 (6) TMI 676
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....e time of borrowal on 20.6.2015, the respondent paid three months interest in advance for the abovesaid promissory note amount and that the respondent paid interest upto November, 2015. 3. It is the further case of the petitioner that during the first week of December, 2015, the petitioner approached the respondent seeking repayment on the above amount and the respondent issued four post dated cheques, each for a sum of Rs.5,00,000/-, dated 25.12.2015, 30.12.2015, 5.1.2016 and 8.1.2016 respectively and upon the request of the respondent, the cheques were deposited for collection on 19.2.2016 through the petitioner's bankers, which were returned dishonoured on 1.3.2016 with endorsement 'Funds Insufficient'. 4. It is the further case of the petitioner that upon dishonour of the cheques, the petitioner caused a legal notice calling upon the respondent to pay the entire amount covered by the respective dishonoured cheques through notice dated 4.3.2016, which was received by the respondent on 8.3.2016, but inspite of the same, the respondent failed to pay the amount. It is the further case of the petitioner that the details about the promissory note obtained by the petitioner to the t....
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....on 138 of the Act. 9. It is the further submission of the learned counsel that it is admitted by the respondent in his deposition in chief that he had given the signed cheques to one Pannerselvem, which proves beyond reasonable doubt that the cheques were issued to clear a legally enforceable debt. The liability for payment having accepted by the respondent, the dishonour of the cheques would entail an action u/s 138 of the Act. It is the further submission of the learned counsel that the presumption u/s 139 of the Act would squarely stand attracted in favour of the petitioner and unless the respondent rebutted the said presumption through proper evidence, which has not been done in the present case, the court below has miserably failed to consider the same and had erroneously acquitted the accused. When the respondent has not disputed his signature in the cheque and the cheque had been given to the petitioner, which has since been deposited, the deposition of D.W.1 that the cheque was given to Pannerselvam is a concocted story to defeat the legitimate claim of the petitioner. The aforesaid facts have not been properly considered by the court below while acquitting the accused, wh....
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....gies 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 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." 38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka (2023 (9) SCC 581) this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: - "8.....
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.... Court cannot interfere with the acquittal on the ground that another view is possible. 13. In light of the above legal principles enunciated by the Apex Court, this Court will now proceed to analyse the evidence on record to find out whether the view arrived at by the trial court is based on the materials available on record or whether there are materials, which warrants grant of leave by this Court. 14. Ex.P-1 is the cheque in the respective cases, which are alleged to have been issued by the respondent towards the discharge of the liability to the petitioner. However, it is the case of the respondent that the cheques, in blank, were given to one Pannerselvam and not to the petitioner. But the petitioner claims that the cheques were given towards the discharge of a legally enforceable debt, which is borne out by the promissory note. 15. However, the fact remains that the promissory note, which has been alleged to have been obtained by the petitioner from the respondent while allegedly parting with the amount by way of loan has not been shown either in the legal notice nor any action has been taken on the said promissory note by the petitioner. But for the dishonour of the cheq....
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....ure referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 17. The petitioner is drawing inspiration from the presumption provided for u/s 139 of the Act to impress upon this Court that it is for the respondent to prove that the cheques, which are the subject matter of the present petitions seeking grant of leave were not issued towards the discharge of any debt or liability and in the absence of such proof, necessarily, the rigours of Section 138 of the Act would stand attracted. 18. In this regard, a careful perusal of the order passed by the court below reveals that the court below had embarked upon a careful analysis of the materials placed before it and had come to the conclusion that though the cheques were claimed to have been issued by the respondent, however, the respondent, who examined himself as D.W.1 had deposed that the cheques were not issued to the petitioner, but were given to one Pannerselvam. Therefore, there is a complete denial not only with regard to the issuance of the cheques, but even with regard to the loan alleged to have been obtained from the petitioner. When there is a flat denial of the cheques by D.W.1,....
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....in-laws to show that such amount was given to his wife, which was given to the respondent as loan. 23. Though the respondent has not disputed his signature in the cheques, but it is the case of the respondent that the cheques were given to one Pannerselvam and not to the petitioner and in the light of the fact that the petitioner has not proved that he had lent the amount due under the cheques to the respondent, which is reflected in the promissory note, the stand of the respondent deserves to be accepted as the respondent has rebutted the presumption u/s 139 of the Act and it becomes incumbent on the petitioner to prove that the cheques were given towards the discharge of a legally enforceable debt. 24. Further, it is the case of the petitioner that the alleged loan carried interest at 30% p.a. and three months interest were paid in advance. However, no notings to the said effect is filed as document. Further, the petitioner had sought return of the amount after six months and, necessarily the respondent, is bound to pay interest for the balance period, if he had really taken the loan. However, the cheques are alleged to have been issued only towards the principal and there is n....