TMI Blog2021 (12) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... iate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded against him. Vide impugned judgment and order dated 01.09.2007, the learned Magistrate acquitted the accused person. Being aggrieved by the same, the appellant-original complainant has preferred the present appeal. 3. Heard, learned advocate Mr. J.B. Dastoor for the appellant-original complainant, learned advocate Mr. Jitendra Malkan with Ms. Khushboo Malkan and Ms. Alpa Dave for the respondent No. 1 and learned APP Ms. Monali Bhatt for the respondent No. 2-State. 3.1. Learned advocate Mr. Dastoor for the appellant-original complainant has mainly contended that the learned Magistrate ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 1 and came to be dishonoured when presented before the bank with an endorsement Account Closed . Furthermore, in his submission, the learned Magistrate ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant and the fact that the respondent No. 1, in his examination-in-chief, Exh. 15 also admitted the transaction with the complainant. Further, it is submitted that the learned Magistrate ought to have appreciated the facts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Another,: (2019) 10 SCC 287; 3) Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197; 4) NEPC Micon Ltd. and Others v. Magma Leasing Ltd.,: (1999) 4 SCC 253; 5) Manishbhai Bharatbhai Shah v. State of Gujarat and Others, 2008 (1) GLR 392. 4. Per contra, learned advocate Mr. Jitendra Malkan with Ms. Khushboo Malkan and Ms. Alpa Dave for the respondent No. 1-accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned Magistrate has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality. 4.1. The learned advocate for the respondent No. 1-accused submitted that for invoking the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) Anil s/o. Baburao Kataria v. Purshottam s/o. Prabhakar Kawane, passed in Criminal Application No. 630 of 2009 on 21.11.2009; 3) Smt. Nanda W/o. Dharam Nandanwar, represented through Pao Dharam S/o. Kisandas Nandanwar v. Nandkishor S/o. Talakram Thaokar, passed by the High Court of Bombay at Nagpur in Criminal Appeal No. 467/2009 on 12.10.2010. 5. Heard the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material on record. Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219, Shambhoo Missir v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; 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. 16. In Ghurey Lal v. State of U.P. (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision, which reads as under: 20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence , or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn: (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons 1992 Supp (2) SCC 312, Triveni Rubber Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P. (2009) 10 SCC 636). (emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) 8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording 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, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.] 6.1. Thus, in the case under NI Act, the 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. Further, explanation 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 Magistrate has come to a conclusion that the debt cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. In this regard, if the deposition of complainant Shri Pukhraj Achaldas, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 23.2. 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. 23.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 23.4. That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 24.5. It is not necessary for the Accused to come in the witness box to support his defence. 6.3. Thus, the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence under Section 138 subject to other conditions prescribed being satisfied . In the case on hand, firstly, as discussed earlier, the debt is not proved to be the legally enforceable debt. There is also nothing on record to show that only with a view to preventing the cheque from being honoured, the account has been closed and the cheque in question is dishonoured. Accordingly, this decision would be of no help to the appellant. 7.1. in Uttam Ram (supra), the Court had held that, The courts below proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability . Further, in the case before the Apex Court, it was admitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishonoured as the amount of money standing to the credit of that account was nil at the relevant time apart from it being closed. The closure of the account would be an eventuality after the entire amount is withdrawn. It means that there was no amount in the credit of that account on the relevant date when the cheque was presented for honouring the same. The expression the amount of money ... is insufficient to honour the cheque is genus of which the expression that account being closed is a specie. After issuing the cheque drawn on an account maintained, if the drawer closes that account apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138. Further, in view of provisions (a), (b) and (c) to Section 138, the cheque is to be drawn by a person for payment of any amount of money due to him on an account maintained by him with a banker and only on that account the cheque should be drawn . In the case on hand, as discussed earlier, the account of which, the cheque in question claimed by the complainant to have been issued by the respondent No. 1 was already closed prior to the issuance of cheque as is transpired f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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