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TMI Blog2020 (11) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... uously visited the complainant and asked to purchase the site for which on his force, the complainant agreed to purchase the site. The accused had received an advance amount of Rs. 9,50,000/- from the complainant and agreed to get the site in the complainant's name for which agreement of sale was made with the complainant and one R. Srinivas. Later, the complainant came to know that the site was sold to someone and when the complainant approached the accused and demanded to return the advance amount received by him, the accused issued two cheques for an amount of Rs. 4,75,000/- each totaling to Rs. 9,50,000/-. When both the cheques were presented in the respective banks on 21.07.2007, the said cheques were dishonoured for the reason as "account closed/transferred to" vide endorsement dated 22.07.2007. Immediately the complainant approached the accused, but the accused expressed his financial difficulties. Hence, the complainant got issued the legal notice to the accused on 27.07.2007 and the notice issued against him was duly served and the accused did not pay the amount. Hence, the complaint was filed against the accused for the offence punishable under Section 138 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter was remanded to adduce the evidence. Even though the accused has not led any evidence after the remand, a contrary judgment was pronounced by the Trial Court. The very defence is that four cheques were stolen by the complainant and in order to substantiate the defence, no evidence has been adduced. The complainant gave the money in favour of the accused in order to purchase the site and the sale consideration was paid based on the sale agreement. The said transaction has not been disputed. However, the Trial Court has come to the conclusion that first of all claim made by the complainant is time-barred and also not proved that liability was in existence. The very approach of the Trial Court is erroneous. 9. The learned counsel appearing for the appellant relied upon the judgment of the Hon'ble Apex Court in the case of M/S. KUMAR EXPORTS v. M/S. SHARMA CARPETS reported in AIR 2009 SC 1518. Referring paragraph No.9 of the judgment the learned counsel would contend that in order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it will be necessary to examine the scope and ambit of presumptions to be rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the other conclusion that the Trial Court has committed an error. Hence, the judgment is aptly applicable to the case on hand. 13. The learned counsel for the complainant/appellant in reply to the arguments of the learned counsel for the accused/respondent would submit that though the matter was remanded to the Trial Court, the accused did not choose to lead any evidence. In support of his contentions, he relied upon the judgment of the Hon'ble Supreme Court in the case of HITEN P. DALAL v. BRATINDRANATH BANERJEE reported in AIR 2001 SC 3897. Referring this judgment, the learned counsel would submit that there is a presumption that cheque was drawn for discharge of liability of drawer and the same ought to be raised by the Court in every case. There must be a rebuttal evidence and mere plausible explanation is not sufficient and proof of explanation is necessary. 14. Having heard the arguments of learned counsel for the complainant and learned counsel for the accused, the points that arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the Negotiable Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no any recital that the accused only has paid the money to the said Srinivas. The said agreement was confronted to the witness P.W.1 and he admits the documents and the same was marked as Ex.D1. He categorically admits that he did not pay the amount to Srinivas, but accused only has paid the amount. He also admits that the accused only negotiated to the said transaction. He also admits that no transaction was taken place between the said Srinivas and him except Ex.D1. A suggestion was made that a private complaint was given against the accused and the said Srinivas, but he denies. Again he says that he gave the private complaint making the allegation against them that they have committed the fraud. He also admits that he has signed the document-Ex.D1. In terms of endorsement, an amount of Rs. 9,75,000/- was paid. But P.W.1 claims that when the said agreement was cancelled, Srinivas has not paid any amount to him. The same was not mentioned in the notice or in the complaint or in the affidavit and also not mentioned that he has not received any such amount when the agreement was cancelled. However, he admits that he has signed the said document, when the agreement was cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in the case of C. Antony (supra) with regard to the Court cannot substitute the findings of the Trial Court by taking a totally different perspective, unless coming to the conclusion that the findings of the Trial Court are perverse. It is settled law that while reversing the judgment of the Trial Court, the Appellate Court should be slow and also if two views are possible, the Court cannot interfere with the findings of the Trial Court. 21. Keeping in view the principles laid down in the judgments referred supra, this Court has to examine whether the Court can draw the presumption. In the case on hand, no doubt this Court can draw the presumption under Section 139 of the Act. Having considered the fact that the accused has not disputed the cheque and also not given the reply to the notice issued by the complainant. This Court also has to examine whether the accused has rebutted the evidence of the complainant. It has to be noted that the learned counsel for the complainant filed a memo with the order passed in the criminal appeal and in the criminal appeal, the appeal was allowed and the judgment of conviction of the Trial Court was set aside and the Trial Court was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is clear that he has received the amount as well as the cheque. He also filed the case against him for dishonour of the cheque. It is further elicited that P.W.1 has filed a private complaint against the accused as well as Srinivas. The complainant has received two cheques from Srinivas at the instance of the police in view of the said complaint. P.W.1 also admits that out of two cheques of Rs. 5,00,000/- each, one of the cheque was honoured and other cheque was dishonoured. Hence, he had filed the complaint against the said Srinivas for dishonour of the cheque. 24. This Court had sought information as to what happened to that cheque case. Though the learned counsel for the complainant took time to produce the documents about the result of the said case, he did not produce the same before the Court. Hence, this Court listed the matter for further arguments and during the course of further arguments, the learned counsel for the complainant would submit that the said case was withdrawn. Hence, it is clear that only on account of settlement arrived between the parties, the said case was withdrawn. 25. Having taken note of the admissions elicited from the mouth of P.W.1, P.W.1 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of issuance of cheque in coming to the conclusion that there was no legally recoverable debt. This Court cannot find fault with the reasoning assigned by the Trial Court. 27. Having considered the material available on record, particularly the evidence and admission of P.W.1, the complainant has not made out a case and the presumption was rebutted by the accused in effectively cross-examining P.W.1 and plausible evidence has been placed before the Court that there was no liability on the part of the accused in issuance of those two cheques. The second mode of rebutting the case of the complainant has been successfully made out by the accused and rebutted the case of the complainant. Hence, I am of the opinion that the judgment of acquittal of the Trial Court cannot be interfered with. This Court has already held that the findings of the Trial Court cannot be reversed unless the appreciation of the evidence available on record prima-facie is perverse and there was a glaring error on the part of the Trial Court in appreciating the material and the same should be apparent on record and this Court does not find the same. Hence, it is not a fit case to interfere with the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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