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TMI Blog2014 (6) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord, a point that would arise for consideration of this Court is: Whether the Appellant has made out any reasonable or substantial ground to interfere with the Judgment of acquittal recorded by the Trial Court? 5. The learned Counsel for the appellant strenuously contended that on overall reading of the materials on record including the cross-examination of the complainant and the evidence of the accused it is clearly established that the accused has admitted the transaction between himself and the complainant and the accused has taken up his plea by way of defence that the cheque which was presented by the complainant to the Bank was forged one and the said cheque was forged by his brother's son. The second contention taken up by the accused was that he has repaid the entire amount under the cheque on different dates by way of issuing cheques and also by way of giving cash amount to the wife of the complainant. The last contention taken up by the accused is that there was absolutely no amount due, therefore, he has not replied the legal notice issued by the complainant under Section 138 of N.I. Act. 6. The learned Counsel strenuously contended that these defence taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse, i.e. if the conclusions arrived at by the Court below are contrary to the evidence on record, or if the Court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence. Bearing in mind the above said principles, now let me consider the materials on record. 10. I have carefully perused the complaint averments and the evidence of the complainant in his examination-in-chief. It is the case of the complainant that the accused has taken a loan of Rs. 50,000/- from the complainant and for discharge of the said loan he has issued a cheque in No. 749402 dated 28.02.2005 for a sum of Rs. 50,000/-. The said cheque was presented to the Bank and the same was returned with a shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter the said Gangadhar G. Sankolli has paid the amount of Rs. 10,000/- by way of cash. It is also suggested that during April 2005 the accused has paid Rs. 5,000/- by way of cash. It is also further suggested that even earlier to April 2005 the accused has paid an amount of Rs. 30,000/- by way of three cheques of Rs. 10,000/- each and also paid an amount of Rs. 10,000/- by way of cash. Further, it is suggested as on 06.05.2005 an amount of only Rs. 5,000/- was due on the part of the accused. The records disclose that the cheque for Rs. 45,000/- was issued on 15.07.2005. In view of these suggestions the accused has made it clear that prior to 15.07.2005 itself he has paid the entire amount due under the earlier cheque of Rs. 50,000/-. If it had been so, there was no necessity for the accused to issue a cheque for Rs. 45,000/- in favour of the complainant. Perhaps that may be the reason the accused has taken up the contention that the cheque was forged by one of his brother's son. But the examination-in-chief of the accused, if it is read in consonance with the cross-examination of the complainant it gives a clear picture that the said allegations of the forgery of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Rs. 45,000/-. Atleast when it has come to his notice that the said cheque was bounced, a notice was issued and the same was well within the knowledge. In spite of that he has not taken any action with regard to this, atleast by intimating his Bankers that the said cheque was forged by his brother's son nor he has taken any action against his brother's son. He gives an evasive reply in the course of cross-examination, because the said cheque was forged by one of his brother's son, therefore, due to the close relationship he has not taken any action. That means to say, even he forgoes the offence being committed by his relative even it causes inconvenience to others. Ultimately it is clear that he has not taken any action. Atleast when the notice was issued to the accused by the complainant, he should have replied that he has not issued any such cheque and the said cheque was forged one. Therefore, the said defence taken by the accused has not been probabilised by any of the materials on record. 13. One more aspect to be borne in mind that when the cheque was presented by the complainant to his Bankers the same was returned with shara 'account was closed'. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production of the income tax returns, non-explanation by the complainant as to how in what manner, on what dates he has paid the amount to the accused may have some bearing to the case of the complainant, when there is a denial by the accused with regard to the amount taken by him, issuance of the cheque. Then only all those factors shall be taken into consideration for the purpose of drawing inference in favour of the accused. When there is sufficient material to establish before the Court that the accused has transacted with the complainant, taken the loan and taken up the specific defence that he has repaid the said amount, in my opinion, on the ground that the complainant has not produced any income tax returns, not explained whether he has got such amount to pay to the accused, all these questions becomes totally irrelevant. These factors have not been properly appreciated and considered by the Trial Court. 15. Looking to the above said circumstances, I am of the opinion, the initial presumption under Sections 118 and 139 of Negotiable Instruments Act cannot be said to have been rebutted by the accused. Of course, the accused need not rebut the presumption beyond all reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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