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2013 (1) TMI 55 - KERALA HIGH COURTDishonour of cheque - prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 - the accused borrowed Rs.3 lakhs from the complainant and issued cheque towards the discharge of the said liability which got dishonored when presented for encashment - Interfere with the order of acquittal - Held that:- It is on the basis of the admitted facts and evidence that the Magistrate has found the complainant has no capacity at the relevant point of time to lend Rs.3 lakhs to the accused. According to Magistrate a person in dearth of money and who faces imminent danger of attachment of the property from his creditor, cannot be believed to have lent Rs.3 lakhs at a time when attachment steps are pending against him. Also the complainant's claim to advancing a sum of Rs.3 lakhs to the accused without getting any documentary proof is not correct. On the other hand, the Magistrate was prepared to accept the case of the defence version that the cheque was clandestinely procured by the complainant with the help of the then wife of the accused, which is the consistent case of the accused right from issuing the reply to the statutory notice of the complainant. Thus, on an examination of the findings of the court below and the materials and evidence referred it can be seen that there is no perversity or illegality in such finding of the court below so as to interfere with the said finding in appeal. As decided in State of Rajasthan v. Darshan Singh @ Darshan Lal (2012 (12) TMI 877 - SUPREME COURT) only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Thus in present case no substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question.
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