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2015 (4) TMI 1313 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of the accused - existence of advance or not - HELD THAT:- The scope and ambit of the jurisdiction of the Appellate Court while dealing with an appeal against acquittal is no longer res integra. The Hon'ble Supreme Court in the case of VIJAY PAL SINGH VERSUS STATE OF UTTARAKHAND [2014 (12) TMI 1375 - SUPREME COURT], has after taking survey of its earlier decisions including in the case of BASAPPA VERSUS STATE OF KARNATAKA [2014 (2) TMI 1386 - SUPREME COURT] and Chandrappa and others Vs. State of Karnataka, [2007 (2) TMI 704 - SUPREME COURT], has held that unless the judgment of acquittal is based on, no material or is perverse or the view taken by the Court is wholly unreasonable or is not a plausible view or there is non consideration of any evidence or there is palpable misreading of evidence, the Appellate Court will not be justified in interfering with the order of acquittal. The Income Tax Return is in respect of M/S Kamala Traders of which the Proprietor is shown as Smt. Radhika R. Pangam and the appellant. The Balance Sheet is signed by the Chartered Accountant and not by the appellant. It is true that in the matter of filing of Returns, the party takes the assistance of a Chartered Accountant/Expert. However, in the present case, the appellant could have examined the Chartered Accountant or atleast produced the accounts maintained, in order to establish that the amount of ₹ 75,000/- was advanced to the respondent No. 1. That evidence is not forthcoming. The appellant has not examined his wife, who is the Proprietor and in whose presence the amount is allegedly advanced. As noticed earlier from the evidence of the appellant, it does not appear that the appellant was having sufficient amount, so as to support the loan of ₹ 75,000/-, somewhere in June, 2008. The submission on behalf of the appellant that adverse inference needs to be drawn as the respondent No. 1 had failed to subject himself for cross examination, also cannot be accepted. It is now well settled that the accused can rebut the presumption on the basis of the cross examination of the complainant and other witnesses if any, and it is not necessary that he should enter the witness box as a rule. Appeal dismissed.
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