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2022 (6) TMI 1209 - HC - Indian LawsDishonor of Cheque - acquittal of acused - presumption of innocence - prepoderance of probablities - scope of interference in acquittal appeals - Section 138 of NI Act - HELD THAT:- It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. In the case under NI Act, the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. It is observed by the learned trial Judge that in the case on hand, the complainant has not produced any documentary evidence to prove his legal debt from the accused and hence, it cannot be believed that the complainant had legal dues from the respondent – accused. This Court has also gone through the documentary evidence as well as the depositions of the witnesses examined by the complainant to prove its case, however, a perusal of the depositions of the witnesses reveals not an iota of evidence suggesting about the amount of Rs.2,30,000/- was due to the complainant from the accused, except the fact that they had given their due amount (of loan instalments) to the respondent – accused. Further, considering the material on record, it appears that the complainant has filed the complaint in question before the learned Magistrate under the provisions of Section 138 of the NI Act towards dishonour of cheque of Rs.45,000/-, the sum, which as per the case of the complainant company itself, was given to the respondent – accused towards loan. A bare perusal of the complaint reveals that there is not single utterance as regards the other dues of the complainant and the complaint is filed only for the loan amount, which, admittedly was of Rs.45,000/- only - Besides, in the Loan Agreement Exh. 29 also, as per the learned trial Judge there are interpolation/corrections. Further, there found no seal and signature of the appellant – company, except the signature of the respondent - accused in the said agreement, Exh. 29, which ought to have been there. The learned trial Judge has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt. The presumption Under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, considering the evidence on record, it is observed by the learned trial Judge that the cheque in question appears to have been with the complainant prior to 14.04.1999 i.e. the date of post-card/letter written by the complainant to the respondent-accused - when the respondent-accused has succeeded in rebutting the presumption, the learned trial Judge has rightly come to the conclusion that the said provision would be of no help to the complainant. The complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to such a conclusion and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which do not call for any interference at the hands of this Court. In the considered opinion of this Court, the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference - Appeal dismissed.
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