TMI Blog2015 (3) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... onus is not shifted from the respondents to the appellant.Therefore, the appellant has proved that having fully known that he has no sufficient funds in his account, the respondent has issued the cheque. Hence, the respondents 1 to 3 are guilty under Section 138 of Negotiable Instruments Act and the judgment of acquittal passed by the Trial Court is hereby set aside. - Crl.A.No.957 of 2006 - - - Dated:- 27-3-2015 - THE HONOURABLE MS.JUSTICE R.MALA For the Appellant: Mr.Ilanthiraiyan, M/s.Sai Bharath and Ilan For the Respondents: Mr.K.V.Sridharan, Mr.R.Marudhachalmurthy, Mr.P.M.Duraisamy JUDGMENT This Criminal Appeal arises out of the judgment of acquittal dated 03.10.2005 made in C.C.No.560 of 2001 on the file of the learned Judicial Magistrate No.II, Coimbatore. 2.The appellant as a complainant preferred a complaint stating that the first respondent is a firm and the respondents 2 to 6 are the partners of the first respondent firm. To develop the business, the second respondent had borrowed a sum of ₹ 4,00,000/- from the complainant on 05.12.1998 and executed a promissory note/Ex.P.10 on behalf of the first respondent firm to repay the same with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that the cheque has been issued for discharging legally subsisting liability. Even though it is a rebuttable presumption, the respondents have not rebutted the presumption. Once the presumption has been rebutted, then only the onus will be shifted to the appellant to prove that the cheque has been issued for discharging legally subsisting liability. But here the presumption under Section 139 of Negotiable Instruments Act has not been rebutted by the respondents. That factum was not considered by the Trial Court. Hence, the judgment of acquittal is perverse and he prays for setting aside the same. To substantiate his arguments, he relied upon the decision reported in 2010 (11) SCC 441 (Rangappa vs. Sri Mohan). 5.The learned counsel appearing for the respondents 4 to 6 would submit that the respondents 4 to 6 are not the partners of the first respondent firm during the relevant point of time and hence, he leave the matter for court consideration. 6.The learned counsel appearing for the respondents 1 to 3 would submit that the Trial Court has rightly held that to prove Ex.P.10, promissory note, no indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cheque has been admitted, the complainant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that the cheque has been issued for discharging legally subsisting liability. It is true that this presumption under Section 139 of Negotiable Instruments act is rebuttable presumption and the respondents/accused ought to have rebutted the presumption by preponderance of probabilities beyond all reasonable doubt. 13.At this juncture, it is appropriate to consider the judgment of the Hon'ble Apex Court reported in 2010 (11) SCC 441, wherein it was held that the presumption, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 of N.I. Act for the discharge, in whole or in part, of any debt or other liability. It is appropriate to incorporate the relevant paragraphs, which reads as follows: 27.Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial Court, we find that the trial Court had noted certain vital defects in the case of the respondent-complainant. Such defects noted by the learned Chief Judicial Magistrate were as under: 6.1.Though the respondent as PW-1 deposed that the accused received the money at his house also stated that he did not remember the date when the said sum of ₹ 1,50,000/- was paid to him. 6.2.As regards the source for advancing the sum of ₹ 1,50,000/-, the respondent claimed that the same was from and out of the sale consideration of his share in the family property, apart from a sum of ₹ 50,000/-, which he availed by way of loan from the co-operative society of the college where he was employed. Though the respondent stated before the Court below that he would be in a position to produce the documents in support of the said stand, it was noted that no documents were placed before the Court below. 6.3In the course of cross-examination, the respondent stated that the cheque was signed on the date when the payment was made, nevertheless he stated that he was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. So, considering the same, as per Section 139 unless contrary is proved, it is presumed that the cheque has been issued to discharge in whole or in part of any debt or other liability. So, it is appropriate to incorporate Section 139 of Negotiable Instruments Act, which is as follows: 139.Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability. 17.He has also relied upon the decisions reported in 2015 (1) SCC 576, wherein in paragraph No.9, it was held as follows: 9.In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of ₹ 14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants Conduct Rules which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 2,500/- p.m. And ₹ 20/- per day towards miscellaneous expenses (bhatta). Admittedly, the Cheque in question was for ₹ 5,00,000/- and all the way the stand of the complainant was that he had given a hand loan of ₹ 1,75,000/- to the accused-appellant. We find no material on record in support of the claim of the Page 6 complainant giving hand loan to the accused-appellant. There was also no calculation of account or stipulation of any interest on the alleged loan amount to show as to how the amount of ₹ 5,00,000/- was figured, in return of a hand loan of ₹ 1,75,000/-, if at all taken by the appellant from the complainant. It is also not on record whether there was sufficient balance amount or not in the bank account of the accused when the Cheque was dishonoured by the Bank. The complainant himself stated in the cross-examination that after the Cheque was returned without payment, he has not made any enquiry with the Bank as to whether sufficient funds were available or not in the account of the accused. In the absence of any authenticated and supporting evidence, we cannot believe that the complainant- respondent who is employed under the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blank cheques bearing Nos.49823 and 498239, drawn on City Union Bank Limited and Cheque bearing No.426630 drawn on Federal Bank Ltd., Koundampalayam, Coimbatore along with Blank pronotes and Stamp Papers signed by our Clients were obtained as Collateral Security by one viz., Mr.K.Kaliswamy, S/o.Krishna Gounder, Managing Director, Sivakrishna Finance and Chit Funds (P) Limited, Coimbatore and same has been retained by the said Mr.Kaliswamy all these years inspite of all the dues being settled with an ulterior motive to defraud our clients. 21.The second respondent examined himself as D.W.4. It is pertinent to note that according to him, he has settled all the dues but he has not issued any notice to get back the cheque, promissory note and other documents given to Sivakrishna Finance and Chit Funds (P) Limited. On the complaint of the respondent, one Ravichandran, Assistant Manager, City Union Bank, Ram Nagar Branch was examined as D.W.1. In his evidence, D.W.4 has stated that from 01.04.1998, Rajkumar, Ramamoorthy and Prakasam were retired from the partnership firm and they submitted a letter to the Bank, which is marked as Ex.D.5 along with the Dissolution Certificate/Ex.D.6. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, it is appropriate to consider the decision reported in 2001 (8) SCC 458, wherein it was held that mere denial or rebuttal by accused in the reply to the legal notice sent by the complainantis not enough.Accused had to prove by cogent evidence that there was no debt or liability.It is appropriate to incorporate the paragraph Nos.6 and7, which reads as follows: 6.In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonored cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Sections 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebutable. However the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .68 of 2006 on the file of the Civil Judge (Senior Division), Malavalli.The copies of the plaint, the evidence of the plaintiff therein and the judgment passed in the said suit have been produced by the accused and marked as Ex.D.4 to D.6. But the above citation is not applicable to the facts of the present case because this is not a civil suit and the case is not based on the promissory note.In such circumstances, the non-examination of attestor of promissory note is not fatal. 25.He also relied upon the decision reported in 2014 (2) SCC 497 and submits that unless the judgment of acquittal is perverse, the Appellate Court shall not interfere with the finding of the judgment of acquittal.He has taken me through paragraph Nos. 9 to 16, which reads as follows: 9.The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary[1]. To quote: (SCC p.639, para 14) 14.We have considered the arguments advanced and heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court. (Emphasis supplied) 13.In Ramesh Babulal Doshi v. State of Gujarat[6], this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed. To quote: (SCC p.229, para 7) 7.the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidenceeven where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (Emphasis supplied) 16.In this context, yet another caution struck by this Court in Chandrappa and others v. State of Karnataka[9] would also be relevant. (SCC p.432, para 42) 42.From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1)An appellate court has full power to review, reappreciate and reconsider the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4)An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence 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 reinforced, reaffirmed and strengthened by the trial court. (5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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