TaxTMI 
TaxTMI 
2023 (1) TMI 1422
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....te Court directed that the whole amount of fine should be paid and disbursed to the complainant as compensation. Complaint case no. C-2379 of 2001 was initiated against the appellant/accused under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act'). The allegations made in the petition of complaint were to the extent that appellant was the proprietor of M/s Sova Builders which carried on business as dealer and stockists of the complainant company namely, Birla Corporation Ltd. The complainant company in due course of business supplied cement and raised bills and as such a current and continuous account was maintained by the complainant company. A sum of Rs. 1,70,000/- was due and payable by the accused persons to the complainant and as such in discharge of the said liabilities an account payee cheque bearing no. 108106 dated 31.03.2001 for Rs. 1,70,000/- drawn on Central Bank of India, Park Circus, Calcutta was issued in favour of the complainant company. The complainant company deposited the said cheque with its banker UCO Bank, 10, B.M.T. Sarani, Kolkata-700001, however, the said cheque when presented was dishonoured with the remarks 'funds in....
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....that as the complainant has failed to show any legally enforceable debt or liability no offence is made out under Section 138 of the N.I. Act. As such, the accused was entitled to be acquitted under Section 251(1) of the Code of Criminal Procedure. The complainant being aggrieved appealed against the aforesaid judgment and order of acquittal passed by the learned trial Court in Criminal Appeal no. 195 of 2019. The learned Appellate Court after hearing both the parties arrived at its finding which is set out as follows: "For the purpose of rebutting the initial evidential burden, the defendant can rely on the direct evidence or circumstantial evidence or on presumption of law or fact. The accused may rely upon the circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may rely upon the presumption of the fact for instance, those mentioned in Section 114 of Evidence Act to rebut the presumptions arising under Section 118 and Section 139 of the N.I. Act. The accused has also an option to prove the non-existence of consideration and debt or liabilities either by letting in eviden....
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....though the case was under Section 138 of the N.I. Act the complainant is required to prove the case by producing documentary evidence which are of bare minimum necessities. The learned advocate questioned the manner in which the provision of Section 139 of the N.I. Act has been interpreted in the background of the evidence available in the record. Additionally it has been submitted that the appellant by way of cross- examination rebutted the prosecution case which was unacceptable to the appellate Court and in fact the appellate Court has substituted its own views by holding that the accused was liable to pay the amount of the dishonoured cheque. Learned Advocate insists on setting aside the order of Appellate court. Mr. Somopriyo Chowdhury learned Advocate appearing for the respondent/complainant submitted that the trial Court proceeded to appreciate the evidence as if it was a case of proof beyond reasonable doubt and grossly mis-interpreted the provision of Section 139 of the N.I. Act. It has been emphasized on behalf of the complainant that the learned trial Court failed to appreciate the provision of Section 139 of the N.I. Act in its true and proper perspective and the Appell....
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....n by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the appellate court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused. However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of inquiry therein. The same rule with same rigour cannot be applied in a matter relating to the offence under Section 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a ....