2020 (1) TMI 1693 - HC - Indian Laws

Dishonour of Cheque - preponderance of probability - conviction of accused of the offence under Section 138 of the NI Act - preponderance of probablities - Burden of proof u/s 139 of NI Act - HELD THAT - It is true that the accused had not adduced any evidence from his side before the trial Court. However the accused filed an application under Section 391 Cr.P.C. before the appellate Court which was allowed. Thereafter the complainant challenged the order passed by the appellate Court before this Court. This Court confirmed the order passed by the appellate Court thereby permitting the accused to adduce additional evidence. It is the case of the accused that he had joined various chits run by the complainant and at that time the complainant had collected blank cheques and promissory notes which have been misused in this case. In fact the accused has accepted his signature in the cheque (Ex-P14) but has taken a stand that he had issued a blank one. As held by the Supreme Court in Bir Singh Vs. Mukesh Kumar 2019 (2) TMI 547 - SUPREME COURT in view of Section 20 of the NI Act it is not illegal for the complainant to fill up the cheque. However the appellate Court has gone deeply into the records of the complainant and has returned a finding that the claim of Rs. 21, 09, 000/- is not supported by the document of the complainant themselves. In Rangappa Vs. Sri Mohan 2010 (5) TMI 391 - SUPREME COURT the Supreme Court has held that the accused can discharge the burden under Section 139 of the NI Act by preponderance of probability. In this case the accused has demonstrated to the appellate Court that the account statement filed by the complainant themselves does not support the cheque amount. It is trite that from the evidence on record when two views are possible the view that probablises the defence case merits acceptance. In such perspective of matter this Court does not find any infirmity in the acquittal of the accused by the Sessions Court warranting interference - this criminal appeal is dismissed.

Summary

Issues:
Challenge to judgment and order, Additional evidence in appellate stage, Conviction under Section 138 of NI Act, Acquittal in appellate court, Legal principles regarding appeal continuation of trial, Presumption under Sections 118 and 139 of NI Act, Burden of proof under Section 139 of NI Act, Evaluation of evidence in acquittal judgments.

Analysis:
The judgment concerns a criminal appeal challenging a lower court's decision in a case involving a chit company as the complainant and an individual as the accused. The accused had borrowed loans from the complainant and issued a cheque that was dishonored, leading to a prosecution under Section 138 of the Negotiable Instruments Act, 1881. The trial court convicted the accused, but the appellate court acquitted him based on additional evidence presented, including receipts showing repayments made by the accused.

The appellate court allowed the accused to introduce additional evidence under Section 391 Cr.P.C., which was upheld by the High Court. The legal principle that an appeal is a continuation of trial was cited, allowing parties to present additional evidence at the appellate stage. The complainant argued that the accused took advantage of the appellate forum to introduce documents to refute their case, but the court upheld the appellate court's decision.

The complainant relied on the presumption under Sections 118 and 139 of the NI Act, stating that the complainant need not prove the debt, but only plead it. However, the court emphasized that pleading about the debt is distinct from proving it. The accused contended that the blank cheques and promissory notes collected by the complainant were misused, and the appellate court found discrepancies in the complainant's statement of accounts, leading to doubts about the claimed amount due.

The burden of proof under Section 139 of the NI Act was discussed, with the accused demonstrating to the appellate court that the complainant's evidence did not support the cheque amount. Legal principles regarding evaluating evidence in acquittal judgments were cited, emphasizing that when two views are possible, the one favoring the defense should be accepted. Ultimately, the court found no infirmity in the acquittal judgment, leading to the dismissal of the criminal appeal.