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TMI Blog2020 (11) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... gal debt or liability, the accused had issued cheque bearing No.741625 on 28-03-2013 drawn on her account maintained with Bank of Maharashtra branch at Shrirampur. It was assured that on the presentation of the said cheque, it would be honoured. Therefore, on the same day, the said cheque was presented by the complainant with her bank, namely, Nagar Urban Co-operative Bank, Branch at Shrirampur. However, the said cheque came to be dishonoured on 30-03-2013 on the ground "funds insufficient". Thereafter, the complainant had issued notice on 04-04-2013 through Advocate and demanded the amount under the cheque. In spite of receipt of the said statutory notice, accused did not give the amount, but gave a false reply and, therefore, the complaint was filed before the learned Judicial Magistrate First Class, Shrirampur. The complainant has examined herself and produced certain documents. The accused has also examined herself as well as a witness in defence. After hearing both sides, the learned Judicial Magistrate First Class has acquitted the accused. 5. Learned Advocate for the appellant would submit that the learned Magistrate has not appreciated the evidence properly, so also has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bhishi and it is her say that if any person failed to contribute to the Bhishi, then complainant used to recover it from the cheques, which she had taken as security. However, in her cross-examination, it can be seen that whatever she had stated in the examination-in-chief was never put by her in her reply to the statutory notice. That means, the stand taken by the accused was not firm and even by preponderance of probabilities, it could not have been concluded by the learned Magistrate that the accused has rebutted presumption under Section 139 of the N.I. Act. Learned Advocate for the complainant - appellant, therefore, requested to allow the appeal and convict the accused by holding that the complainant has proved that the accused has committed offence punishable under Section 138 of the N.I. Act beyond reasonable doubt. 6. Per contra, the learned Advocate for the respondent supported the reasons given by the learned Judge while acquitting the accused. He submitted that first of all the burden which was on the shoulders of the complainant to prove that she had extended the hand loan to the accused itself is false. Though it has come on record that the complainant is running a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en it was as a security and not towards the alleged legally enforceable debt or liability for extending hand loan of Rs. 80,000/-. The learned Judicial Magistrate First Class was right in making comparison of the signature on the disputed cheque with the admitted signature of the accused under Section 18 of the Indian Evidence Act. The acquittal of the respondent - accused was legal and correct, which requires no interference at the hands of this Court. 8. At the outset, it will have to be seen as to whether the complainant has discharged the initial burden to prove that she had advanced hand loan to accused. Complainant has deposed as per her complaint. In her cross- examination taken on behalf of accused, she was firm in saying that she had advanced the said amount on the request of accused. It has come on record that complainant runs a saree shop. She has produced Shop Act licence to support her said contention. In fact, if we peruse the testimony of accused along with this evidence, then we can get that accused is not disputing that complainant runs a saree shop. That means the complainant has source of income and she was in a position to extend hand loan. Another important po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a debt or liability by adducing evidence. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt". 9. Thus, when in this case, as per the first defence, accused is admitting that she had given the cheque Exhibit-37, thereby admitting her signature on the cheque, then she had impliedly given authority to the complainant to complete the cheque and present it for encashment. The second defence appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the complainant to return the cheques. If we see the contents, then it is clear that the relationship between accused and complainant was no longer cordial. In such situation, whether accused would have allowed complainant to retain two cheques? The cheque has been returned with remark 'Funds Insufficient' and not as 'stopped by drawer'. Accused had not taken any legal action to prevent alleged misuse of her cheque, which should have been her natural conduct. Hence, the defence taken by her is unbelievable. 10. At the cost of repetition it can be said that accused is admitting issuance of disputed cheque Exhibit-37 and, therefore, reliance can be placed on the decision in M/S. Shree Daneshwari Traders vs. Sanjay Jain [CRIMINAL APPEAL NOS.61-62 OF 2011 decided on 21 August, 2019] wherein it has been held that, "Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, in every case, one cannot jump to the conclusion that the presumption under Section 139 of said Act stands rebutted". We can consider the decision in the case of Assistant Director of Inspection vs. A. B. Shanthi, (2002) 6 SCC 259, wherein it has been held :- "The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so-called lender also to manipulate his records later to suit the plea of the tax-payer. The main object of S. 269-SS was to curb this menace." 14. In the light of the observations of the Apex Court, it cannot but be said that Section 269-SS of the Income Tax Act only provided for the mode of acceptance of payment or repayment in certain cases so as to counteract evasion of tax. Section 269-SS does not declare all transactions of loan, by cash in excess of Rs. 20,000/- as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, however, she has failed to discharge the said presumption. 20. Complainant had issued statutory notice within statutory period. It was replied by accused but not complied with within the statutory period and, therefore, this Court holds the accused guilty for committing offence punishable under Section 138 of N.I. Act. The view taken by the learned Magistrate thereby acquitting the accused is erroneous and not based on sound legal principles. Hence, interference is required at the hands of this Court. Though the legal principle is that merely because two views are possible, the appellate Court should not take contrary view; but as aforesaid the learned Magistrate had not scanned the evidence properly with sound legal principles and, therefore, interference is required. In other words, this Court is well aware that accused was acquitted by the learned Trial Judge; and ordinarily the appellate Court would cautious while setting aside the said acquittal. In this connection reliance can be placed on the law explained by Hon'ble Supreme Court in Govindaraju alias Govinda vs. State by Sriramapuram P. S. & Anr. [(2012) 4 SCC 722] as follows :- "A person is presumed to be innocen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court dealing with the principles which may guide the exercise of jurisdiction by the Appellate Court in an appeal against a judgment of acquittal. We may usefully refer to the following paragraphs of that judgment: "8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for". 21. It has been further observed that :- "When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U. P. (2003) 1 SCC 761, Narendra Singh v. State of M. P. (2004) 10 SCC 699, Budh Singh v. State of U. P. (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Aru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused." 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79] Hon'ble Supreme Court while dealing with a matter regarding quantum of sentence for the offence under Section 138 of the N.I. Act, observed as under :- "9. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones. The learned Magistrate, in his wisdom was of the view that imposition of a fine payable as compensation to the Appellant was sufficient to meet the ends of justice in the instant case. Except having regard to the submission made that the Appellant/complainant, is a widowed lady of advanced age, there is no other special circumstance which calls for interference with the order of the learned Magistrate, as confirmed by the High Court, with an increased fine." 27. In R Vijayan vs. Baby and another, [(2012) 1 SCC 260] Hon'ble Supreme Court held that while awarding compensation in matters under Section 138 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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