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2021 (8) TMI 1138 - HC - Indian LawsDishonor of cheque - maintainability of appeal - correctness of acquittal of accused - Allegation is that the complainant has misused the signed cheque which was kept in the office of the accused was stolen - Whether the appeal lies against the order of acquittal passed by the First Appellate Court or whether the revision lies as contended by the learned counsel for the respondent? - HELD THAT:- In the case on hand, there are divergent findings given by the Trial Court as well as the First Appellate Court and hence, an appeal lies under Section 378 of Cr.P.C. and the complainant has rightly filed the appeal and the question of filing the revision does not arise as contended by the learned counsel for the appellant and the very contention that the revision lies cannot be accepted since, there is a clear bar to invoke Revisional jurisdiction when there is a provision for filing an appeal. Hence, the very contention of the learned counsel for the appellant that the appeal is not maintainable cannot be accepted - question answered in negative. Whether the First Appellate Court has committed an error in acquitting the accused? - HELD THAT:- On perusal of both oral and documentary evidence available on record, it is the specific case of the complainant that he had lent money to the accused on 15.10.2006 and in order to repay the said loan the accused had issued a cheque on 25.01.2007. When the cheque was presented it was dishonoured with a shara ‘insufficient funds’. The complainant has relied upon document Ex.P1-cheque. The accused did not dispute his signature available on Ex.P1. The complainant also relied upon Ex.P3-legal notice and the said notice was sent to the residential address of the accused Kurubarahalli and also to his driving school - The accused has to lead plausible evidence before the Court and this Court has taken note of the evidence of DW1 that his evidence cannot be believed and the same is not trustworthy and he makes an attempt to give evading answer in the cross-examination in respect of other two cases filed against him for cheque bouncing. Though he denies, he admits that two cases are filed against him in the cross-examination and hence his evidence is not credible. The statutory presumption available is in favour of the complainant. The other observation made by the appellate court that when the amount is paid in excess of ₹ 20,000/- and the said amount to be paid through cheque only under the Income Tax Act also cannot be accepted. Here, the transaction is between friends and both of them having acquaintance with each other and also running Crackers’ Chit. P.W.1 claims he was an agent and D.W.1 claims he was a Director - the appellate Court has committed an error in coming to the conclusion that the accused rebutted the evidence of the complainant and in the cross-examination PW1, nothing is elicited except they are good friends and the complainant was also visiting the driving school of the accused. Hence, the appellate Court has committed an error in reversing the finding of the trial Court without drawing presumption available in favour of the complainant. Therefore, nothing inspires this Court that the evidence led by the accused amounts to rebutting the evidence of the complainant. In the case on hand also, the accused has admitted the cheque available in Ex.P1 and failed to rebut the presumptions and nothing is placed before the Court and no cogent evidence to disbelieve the case of the complainant. Hence, the presumption is in favour of the complainant. Unless, a contrary evidence is placed before the Court, the contention of the learned counsel for the appellant that there was no transaction and the cheque has been stolen and misused cannot be accepted. Hence, the approach of the First Appellate Court is erroneous and it requires interference by this Court. Appeal allowed.
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