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2017 (1) TMI 1500 - HC - Indian LawsJudgment of Acquittal - case of appellant is that the trial Court had committed an error in acquitting the Respondent/Accused, by not taking into a very vital fact that the Respondent had borrowed a sum of ₹ 3,00,000/- from the Appellant/Complainant towards his urgent family expenses and to discharge the said amount, the latter issued a cheque on the same day - Appellant urges before this Court that the 'onus' is on the Respondent/Accused to prove that Ex.P1 Cheque dated 02.05.2015 was not legally enforceable one. Held that: - It is well settled in Law that when an individual had paid an amount payable by him, he ought to have been discharged his obligation and a creditor is bound to accept the tender. In fact, under Section 138 of the Negotiable Instruments Act, a Court of Law is to presume that a cheque was issued towards a debt or liability and in reality, the said presumption is a rebuttable one, the onus of proving that the cheque was not issued for a debt or liability is on an Accused. A Drawer has to establish the same in the course of trial of a main case by adducing a cogent, coherent and convincing evidence. One cannot brush aside a very significant fact that it is not for the prosecution to eliminate and anticipate all possible defence circumstances which may exonerate an accused - It is true that an Appellate Court is not meant to fill up the gaps/lacunae in a prosecution case. However, when it is the duty of a concerned Court of Law to ascertain the factual aspect/truth in a given case, then, an Appellate Court can re-appreciate the evidence available on record and to come to its independent conclusion. Maintainability of Appeal - Held that: - Just because a Leave was granted it does not fetter the Court when real facts were brought before it from going into the issue whether an Appeal is maintainable. Where an acquittal in Appeal was recorded by the Sessions Judge, an application for Leave to have under sub-section (4) of Section 378 Cr.P.C. by the Complainant is maintainable. In fact, Section 378(4) Cr.P.C. applies as much to cases instituted upon complaints for the offences under I.P.C. as it does to complaints involving any other offence under any special enactment - Section 378(4) Cr.P.C. places no restriction on the complainant. Section 4(2) Cr.P.C. enjoins that all offences under any other Law, other than I.P.C. shall also be enquired into or tried and otherwise dealt with the provisions of the Code, subject to any other enactment which contemplates a different mode of trial for such offence. Furthermore, the non-obstante clause in Section 142 of the Negotiable Instruments Act clearly spell out that the three matters mentioned in Section have an overriding effect on the ingredients of Criminal Procedure Code. Apart from that, in an exercise of an Appellate Jurisdiction, the Court has power not only to correct an error in the Judgment under Appeal but to make such disposition of the case, of course according to equity, good conscience, fair play and Justice. This Court is of the considered opinion that an opportunity is to be provided to the Appellant/Complainant to examine Palanisamy on his side to repel/repudiate the stand of the Respondent/Accused. Also that, when it is a case of the Appellant/Complainant that at the time of loan amount being paid to the Respondent/Accused, his wife was present, then, this Court is of the cocksure view that the Appellant/ Complainant is to examine his wife to speak about the transaction in issue (especially when it was disputed on the side of Respondent/ Accused). The entire subject matter in issue is remanded back to the Learned Judicial Magistrate, Fast Track Court (Magisterial Level), Attur for fresh consideration in the manner known to Law and in accordance with Law.
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