TMI Blog2002 (11) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt on the three points are either irrelevant or contrary to material on record. - CRIMINAL APPEAL NO. 1748 OF 1996 - - - Dated:- 1-11-2002 - N. SANTOSH HEGDE AND B.P. SINGH, JJ. M.T. George for the Appellant. Ms. Malini Poduval and Ms. Lansinglu Rongmei for the Respondent. JUDGMENT Santosh Hegde, J. - This appeal by special leave is preferred against the judgment of the High Court of Kerala at Ernakulam dated 17-11-1995 made in Criminal Appeal No. 438/93 whereby the appellant herein was found guilty of an offence punishable under section 138 of the Negotiable Instruments Act (the Act), and was convicted and sentenced to pay a fine of Rs. 37,500 and in default to undergo RI for a period of 3 months. The High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of an advocate - Vijay Kumar - in the office of the said advocate. But the respondent had not examined said Vijay Kumar to prove this fact. The trial court also held that the respondent had not given any reason whatsoever for not examining this witness. The trial court also held that the respondent s case that the cheque in question Ex. P-1 was filled up by the appellant and brought to the office of Vijay Kumar could not be accepted because of the difference in the ink used in writing of the name and amount in the cheque and the ink used in the signature portion of the cheque. This, according to the trial court, showed that the case of the appellant that he had given a blank cheque signed was more probable. The trial court also took int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused the evidence as well as the judgments of the two courts below. From the judgment of the trial court, we notice that the learned Magistrate has given cogent reasons for not accepting the evidence led on behalf of the respondent and on that basis he came to the conclusion that the comp-lainant/respondent has not established his case. While the High Court on reappreciation of the evidence, has come to a different conclusion on entirely new grounds without considering the material considered by the trial court and as held above, convicted the appellant. While doing so, the High Court had lost sight of the fact that it was sitting as an appellate court against a judgment of acquittal passed by the trial court, therefore, there was an obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court. See - Bhim Singh Rup Singh v. State of Maharashtra [1974] 3 SCC 762 and Dharamdeo Singh v. State of Bihar [1976] 1 SCC 610. If we examine the judgment of the two courts below in this appeal in the light of the law laid down by this Court in the above cited cases, it is to be seen that the trial court came to the conclusion that non-examination of advocate Vijay Kumar was fatal to the case of the complainant/respondent because it is the case of the respondent that he came to know the appellant through said Vijay Kumar and the amount in question was paid in the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the trial court relied upon but the High Court did not consider the effect of the said default on the part of the respondent. The third circumstance relied upon by the trial court is in regard to the difference in the ink found in the body of the cheque as well as in the signature of the appellant. It is the case of the respondent that the appellant had filled up the cheque in its entirety including its signature and had brought the cheque to the office of Vijay Kumar to be handed over to the respondent but the learned Magistrate on a perusal of the cheque, found that the ink used in the body of the cheque was different from the ink used in the signature on the cheque, therefore, he drew an inference that the case put forth by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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