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TMI Blog2021 (8) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 2006. The complainant gave an amount of Rs,64,000/- on 15.10.2006 and the accused had promised to repay the said loan within three months but the accused did not repay the same. However, on repeated requests, the accused issued a self cheque dated 21.01.2007 and when the same was presented, it was dishonoured. The complainant got issued legal notice both to his residential address as well as his office address. That in spite of receiving the notice sent under certificate of posting, the accused did not give any reply and hence the complainant was forced to file complaint. The complainant in order to substantiate his contention he himself examined as PW1 and got marked document Exs.P1 to P8. The trial Court, after recording the evidence of the complainant examined the accused under Section 313 of Cr.P.C. The accused also examined himself as DW1 and got marked Ex.D1. The trial Judge, after considering both oral and documentary evidence convicted the accused vide judgment dated 20.02.2009. Being aggrieved by the same, the accused had preferred an appeal in Criminal Appeal No.23/2009 and in the said appeal, the accused was acquitted vide judgment dated 30.11.2010. Being aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that effect no probable evidence is available to believe the defence of the accused. Learned counsel would also submit that the judgment of the Apex Court in the case of RANGAPPA v. MOHAN reported in AIR 2010 SC 1898 is aptly applicable to the case on hand in order to draw presumption that the accused has not disputed his signature on the cheque and also no reply was given to the legal notice. Though the accused has been examined, the statutory presumption under Section 139 of the NI Act has not been rebutted by the accused and also the admission on the part of DW1 has not been considered by the appellate Court in a perspective manner. It is contended that the appellate Court has committed a fundamental error in not considering the presumption and also held that the complainant was not having any source to lend money in favour of the accused is erroneous and hence, it requires interference by this Court. 5. Having heard the learned counsel for the appellant, this Court on re-appreciation of evidence, allowed the appeal and set aside the judgment of the First Appellate Court and convicted the accused for the offence punishable under Section 138 of the NI Act. Thereafter, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, observed the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Session. 9. With regard to the merits of the case, the learned counsel would contend that it is the case of the complainant before the Magistrate that the loan transaction was taken place on 15.10.2006 and he has not mentioned anything about the capacity to lend the amount and he ought to have demonstrated before the Court regarding his capacity. Ex.P1 is not in the handwriting of the accused and the same has not been explained either in the complaint or in his evidence. The learned counsel also would submit that under Section 269SS of the Income Tax Act, if it is more than Rs. 20,000/-, the same is payable by way of cheque and not by cash transaction. The First Appellate Court has applied its mind and given the sound reasoning for acquittal and hence, the same cannot be interfered with and the benefit of acquittal goes in favour of the accused. 10. Per contra, the learned counsel appearing for the appellant in reply would submit that the Court has to look into the definition as defined under Section 2(d) of Cr.P.C. This is not a second appeal. Accused was convicted before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers of the First Appellate Court. Hence, this Court cannot exercise the powers of Appellate Court and the learned counsel for the appellant would submit that the appeal lies not the revision as contended. 14. In keeping this contention, this Court has to extract the very proviso of Section 378, which has been invoked by the appellant. Section 378 of Cr.P.C., reads as follows:- "378. Appeal in case of acquittal (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),- (a) the District magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." 16. This Court would also like to extract Sections 386 and 372 of Cr.P.C., which read as follows: "386. Powers of the appellate court After perusing such record and hearing the appellant or his pleader, if he appears, and the Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted for trial. In the case on hand also powers are vested with the First Appellate Court under Section 386(b) or alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. The powers are vested with the Appellate Court to re-appreciate the material on record. 18. Having perused Section 372 of Cr.P.C., - No appeal to lie unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. There is a proviso that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing in adequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such Court. The right is conferred on the victim to prefer an appeal against an order acquitting the accused or challenge the inadequate compensation or conviction for a lesser offence. Here is a case of conviction and reversal of convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal from the order of acquittal and the present appeal is filed. 23. Having perused the proviso of Section 401 particularly, sub-clause (4), it is very clear that, where under this Code an appeal lie and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 24. On reading of proviso of Section 401, there is a clear bar, where an appeal lies under the code and no appeal is brought, no proceedings by way of revision shall be entertained. Hence, the very contention of the learned counsel for the respondent that the revision lies and it amounts to a second appeal cannot be accepted. It has to be noted that the Trial Court in the case on hand convicted the accused and the First Appellate Court has reversed the finding and acquitted the accused. Hence, it is clear that this Court again re-appreciate the evidence available on record; whether the First Appellate Court has committed an error while re-appreciating the evidence has to be examined by this Court on re-appreciation of evidence. The scope of revision is very limited and not like the appellate jurisdiction. The First Appellate Court has to re-appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pond to Section 378 of Cr.P.C., 1973 has held that, the complainant with the leave has right of appeal to the High Court against the order of acquittal passed by the Sessions Court in Appeal against the order of conviction passed by Magistrate. The said judgment is also considered by the Gujarat High Court in Mohammadmiya Kalumiya vs. Majidkhan Dildarkhan and Another reported in 1972 Crl.L.J. 1409. 26. Having discussed in detail, the Division Bench comes to the conclusion that High Court or the Sessions Court in the revisional jurisdiction will not have a right to convert an order of acquittal into a conviction and Division Bench in agreement with the view taken by Hon'ble Justice Arali Nagaraj and not accepted the findings of the Single Judge passed in Crl.A.No.142/2009 and hence, it is clear that only appeal lies and not the revision as contended by the learned counsel for the appellant. 27. The learned counsel for the appellant also relied upon the judgment of the Apex Court in Subhash Chand's case (supra), and brought to the notice of this Court paragraph No.17 of the judgment and the issue involved in the case on hand is different from the discussions made in paragraph N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt would contend that this is a transaction of hand loan and in the complaint or in his evidence, the accused did not mention or demonstrate that he is having capacity to lend loan. It is elicited that, Ex.P1-cheque is not in his handwriting and the same has not been explained by the complainant either in his complaint or in his evidence. The learned counsel for the respondent would also submit that, there is a bar under Section 269-SS of Income Tax Act, 1961 to make payment in cash and the amount has to be paid only by cheque. The said aspect has been considered in detail by the First Appellate Court applying its mind and has come to the right conclusion. 30. Having considered the respective contentions of the appellant and the respondent, this Court has to re-appreciate the material on record. Before considering the oral and documentary evidence, this Court would like to refer the contents of the complaint. The complaint discloses that the complainant and the accused are good friends and they know each other from past several years. The accused had approached the complainant in the first week of October and requested him to pay hand loan of Rs. 70,000/- as he was in financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He admits that he was running Sai Vidya Driving School at Hosakote, located in Jayashree Hospital building, Old Madras road, Hosakote Town. He admits that he only gave instructions to his counsel to prepare his chief evidence and also admits that in the said affidavit he has sworn to that he is a resident of Kurubarahalli. He also admits that he was running crackers chit and also admits that he was running the same for a period of two years. He admits that he had acquaintance with the accused from 2004 and also says both of them had opened joint account in the year 2004 but they had not obtained any cheque book except pass book-Ex.D1. He also admits that in the chief evidence he sworn to that a joint account was opened in the Vijaya Bank and he claims that the same is by mistake. He states that he used to keep five signed blank cheques in his driving school as he used to visit RTO office in connection with the driving school. He came to know about stealing of the said cheque only when he received summons from the Court and he admits that he cannot tell which number the cheque was stolen. He did not give any complaint to the police as per the advice of his advocate that not to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sent to the residential address of the accused Kurubarahalli and also to his driving school. The complainant relied upon Ex.P4-certificate of posting, RPAD and postal receipt. Exs.P7 and P8 are the registered postal cover in respect of his residential address and also the driving school address. 34. It is pertinent to note that when a notice was sent under UCP as well as registered post, an endorsement at Ex.P7 discloses that the post man had visited for seven days to his residential address and the accused was not found, hence returned the same. In the cross-examination, DW1 categorically admits that the address mentioned in Ex.P7 is correct and so also the address mentioned in Ex.P8 is in respect of his driving school. It is also important to note with regard to service of notice is concerned, the accused made an attempt in his evidence that from last two years he is residing at Hosakote Town. But, in the cross-examination, he categorically admits that in his chief evidence affidavit sworn to that he is residing in the address mentioned at Ex.P7. The said affidavit was filed on 17.01.2009 and hence it is clear that as on the date of filing of the affidavit, he was residing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He admits that he has not given any complaint to police and also did not intimate the bank as he did not know about stealing of the cheque. But, he gave an explanation that he came to know only after received summons from the Court and on the advice of the advocate not given any complaint. It is important to note that DW.1 categorically admitted that he is a B.Com., graduate and what made him to keep 5 signed cheques, is not explained. 37. Having perused the evidence of DW1, a suggestion was made to the accused whether he had faced several cases on account of dishonour of cheque in respect of one Malleshaiah but he admits that the said Malleshaiah has filed a false case against him. It is also suggested that one J.Nagaraj has also filed a case against him though he denies in the cross-examination, he categorically admits that Ex.P1 the subject matter of the cheque and the complaint filed against him before the Malur Court cheque are bearing account No.4782 and both the cheques are of Vijaya Bank cheques. Hence, it is clear that though he denies the cases filed against him by Malleshaiah and J.Nagaraj, the admission made by him clearly shows that the evidence of DW1 is not trustwor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eep signed blank cheques that too, 5 cheques and he has not assigned any reasons to whom he has handed over the said cheques. The evidence adduced by the accused with regard to stolen of cheque in his driving school cannot be believed. 39. The accused has to lead plausible evidence before the Court and this Court has taken note of the evidence of DW1 that his evidence cannot be believed and the same is not trustworthy and he makes an attempt to give evading answer in the cross-examination in respect of other two cases filed against him for cheque bouncing. Though he denies, he admits that two cases are filed against him in the cross-examination and hence his evidence is not credible. The appellate Court has carried away in a wrong notion that the complainant failed to prove that he lent money and erroneously relied upon the judgment reported in the case of Shiva Murthy vs. Amruthraj reported in ILR 2008 KAR 4629 and has held that the complainant has to prove the existence of legal debt. It is to be noted that the complainant has placed the cheque which has not been disputed by the accused and no reply is given and Trial Court rightly drawn the statutory presumption under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the presumption has to be drawn in favour of the complainant under Section 139 of N.I. Act. It is also observed that, it is settled law that the presumption under the N.I. Act is rebuttable presumption and the Court has to look into the evidence available on record whether the accused has rebutted the evidence of complainant. If the complainant is able to draw the presumption at the first instance, the burden shifts on the accused with regard to rebutting the evidence of the complainant. In this case, though the accused himself has been examined as D.W.1 and the evidence of the complainant has not been rebutted either by way of effective cross-examination or by leading evidence before the Trial Court. But, the First Appellate Court, has committed an error in reversing the findings of the Trial Court. 42. The Apex Court, in the judgment reported in Bir Singh vs. Mukesh Kumar reported in (2019) 4 SCC 197 has held that, in a case of N.I. Act, 1981, Section 139 raises presumption of law that cheque duly drawn was in discharge of debt or liability. However, the presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. The Apex Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption in favour of the holder is apparent on the face of record. Therefore, it is required to be presumed that cheques in question were drawn for consideration and complainant received it in discharge of an existing debt and onus is shifted on accused, unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused. The failure of accused to show reasonable probability of existence of transaction with his friend, evidence of friend not supporting his case and accused not denied his signature on cheques but, attempting to suggest availability of his signatures on blank stamp paper of his friend, no cogent reasons for him to sign on blank stamp paper/cheques with all relevant particulars are same cheques forming subject matter of complainant's case and held that accused is liable to be convicted. 46. In the case on hand also, the accused has admitted the cheque available in Ex.P1 and failed to rebut the presumptions and nothing is placed before the Court and no cogent evidence to disbelieve the case of the complainant. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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