2021 (12) TMI 234 - GUJARAT HIGH COURT

Dishonor of Cheque - cheque was issued for discharge of legal liability towards complainant or not - failure to rebut the onus of proof and statutory presumption under Sections 118(a) and 139 of the NI Act - acquittal of the accused - HELD THAT:- It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.

The fact remains that 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 Magistrate 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 Magistrate.

The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, the accused has succeeded in rebutting the presumption, showing preponderance of probability by leading evidence and hence, onus shifts upon the complainant to prove otherwise, however, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt as neither any account nor any details of amount paid by the complainant is submitted by the complainant before the trial Court.

The complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned Magistrate do not call for any interference - Appeal dismissed.