TMI Blog2021 (11) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... planation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to such a conclusion that the debt cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. Eventually, the learned trial Judge has opined that it cannot be overruled that the cheque was given for security. Further, the respondent - accused has also examined independent witnesses and considering their depositions in detail, the learned trial Judge has come to the conclusion that defence of accused is probable. In the overall facts and circumstances of the case, the learned trial 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.1999 to the respondent No. 1 through his advocate by RPAD, however, since the respondent No. 1 did not repay the said amount, the complainant was constrained to file complaint before the Court of learned Judicial Magistrate First Class, Jamnagar under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as the NI Act ). 2.1. Upon such complaint being filed and subsequent service of summons upon the respondent No. 1, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dated 27.01.2005, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal. 3. Heard, learned advocate Mr. Nirav C. Thakkar for the appellant - original complainant, learned advocate Mr. Premal Rachh for the respondent No. 1 and learned APP Mr. Dharmesh Devnani for the respondent No. 2 - State. 3.1. Learned advocate Mr. Thakkar for the appellant - original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as issued, cheque in question was duly signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vitiated by some manifest illegality. 4.1. The learned advocate for the respondent No. 1 - accused submitted that for invoking the provisions of Section 138 of the NI Act, the debt or other liability means a legally enforceable debt or other liability, which the complainant has failed to prove and accordingly, the learned trial Judge has rightly recorded the acquittal. 4.2. The learned advocate for the 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 trial Judge has rightly acquitted the accused of the charges levelled against him. 4.3. It is submitted that some of the crucial witnesses to the incident in question viz. Karan Parbatbhai Varotariya, Exh. 76 and Tulsibhai Jivrajbhai Patel, Exh. 80 were not examined by the complainant side and it is only the respondent No. 1 who had called upon such witnesses, in whose presence, the cheque was stated to have been demanded to be returned back to the respondent No. 1. It is submitted that if the case with regard to the land and home, as projected by the respondent No. 1 would not have been there, the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5.3. In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court . 5.4. Yet in anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge 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 v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect that 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. Interference in a routine manner where the other view is possible should be avoided, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of justice, lest the administration of justice be brought to ridicule. (emphasis supplied). 6. 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 another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to one year. Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whicheve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the complainant has also failed to explain as to why the complainant had cancelled the sale deed of home. Further, from the appreciation of evidence, the learned trial Judge has disbelieved the story of transfer of the complainant which remained in abeyance and hence, cancellation of sale deed. Further, it is an admitted fact that on the same day i.e. on 13.12.1999, the sale deed qua land came to be executed, whereas, the sale deed qua home was cancelled. Further, the cheque in question was of prior in point of time to the said transactions and legal notice for dishonour of cheque was already issued to that effect. Thus, while doing the aforesaid transactions (qua sale deeds) on 13.12.1999, it could be presumed that there might be talks about dishonour of cheque, but such is not the case of the complainant. Further, it emerges from the record that the complainant had availed ₹ 3 lakh cash for transaction, which means no dues qua land or home. Thus, eventually, the learned trial Judge has opined that it cannot be overruled that the cheque was given for security. Further, the respondent - accused has also examined independent witnesses and considering their depositions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the cheque was drawn towards legally enforceable debt. Further, after due appreciation of evidence, the learned trial Judge has come to the conclusion that the cheque and sale deed for the home appear to have been given for security purpose since the possession of land was not given. Accordingly, when the respondent - accused has succeeded in rebutting the presumption, the learned trial Judge has rightly come to the conclusion that the said provision would be of no help to the complainant. 6.4. On re-appreciation and reevaluation of the ocular 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 trial Judge has meticulously considered the depositions of all the witnesses and came to such a conclusion and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which do not call for any interference at the hands of this Court. 7. In view of the aforesaid discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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