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2023 (9) TMI 1246 - HC - Indian LawsDishonour of Cheque - interference with the order of acquittal of the accused - vicarious liability of the Directors of a company - personal liability of the drawer of cheques - failure to prove charge under Section 138 of the N.I Act - HELD THAT:- There is absolutely no evidence from which criminal law under Section 138 of the N.I Act could be attributed to respondent No. 3. Therefore, recording of the order of acquittal in favour of respondent No. 3 by the learned Magistrate cannot be called into question. The learned Advocate for the respondents has laid enough stress on the approach of the appellant court while deciding an appeal against the order of acquittal passed in favour of respondents. Series of decisions quoted above are cited by the learned Counsel for the accused. The law on this point is no longer res integra and settled by the Hon’ble Supreme Court in a Three Judges Bench decision in RAJESH PRASAD VERSUS THE STATE OF BIHAR AND ORS. [2022 (1) TMI 1396 - SUPREME COURT] - an order of acquittal can be interfered with on the ground of (a) perversity (b) non-consideration of incontrovertible evidence (c) disbelieving the testimony of witnesses on an unrealistic conjecture (d) non-consideration of direct and cogent accounts of eye-witnesses (e) non-consideration of the testimony of natural witnesses on the ground of interestedness (f) imposition of unrealistic standard of “implicit proof” rather than that of the proof beyond reasonable doubt (g) rejection of circumstantial evidence on exaggerated and capricious theory (h) rejection of circumstantial evidence based on an exaggerated and capricious theory which are beyond the plea of the accused (i) order of acquittal resulting in gross miscarriage of justice (j) perfunctory consideration of evidence (k) acquittal caused on the ground of delay etc. Learned Magistrate held that the complainant gave loan to the company to M/s Amba Complex Private Limited and not the Directors of the company in their personal capacity. Therefore, the company was the principal accused under Section 138 read with Section 141 of the N.I Act - As drawer of the cheque respondent No. 1 is liable to be under Section 138 of the N.I Act. If the Managing Director or Joint Director of the company takes personal responsibility to discharge the debt or liability which the company owed and issued cheque in his/their capacity, the said person is solely liable as drawer of the cheque - this Court finds that the learned Magistrate recorded an order of acquittal on misreading of evidence and the evidence on record is sufficient to hold the respondent No. 2 liable for committing offence under Section 138 of the N.I Act. The respondent No. 1 is held guilty for committing offence under Section 138 of the N.I Act. The order of acquittal passed in favour of respondent No. 3 is not interfered with and the order acquitting the respondent No. 3 passed by the learned Magistrate is affirmed - order of acquittal is set aside - respondent No. 2 is convicted accordingly and sentenced to undergo simple imprisonment for a period of six months - appeal allowed.
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