TMI Blog2021 (11) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... law relating to Negotiable Instruments Act and as such the same is liable to be set aside - Application allowed. - CRA 756 of 2015 - - - Dated:- 10-11-2021 - THE HON BLE JUSTICE TIRTHANKAR GHOSH For the Appellant : Mr. Debasish Roy, Mr. Navanil De, Ms. Mayukhi Mitra For the Respondent : Mr. Ayan Bhattacherjee, Mr. Sharequl Haque ORDER Tirthankar Ghosh , J :- The present appeal has been preferred against the judgment and order of acquittal dated 31.08.2015 passed by the learned Additional Sessions Judge, Bolpur, Birbhum, in connection with Criminal Appeal No. 3 of 2015, wherein the learned appellate Court was pleased to acquit the accused/respondent from the charge under Section 138 of the Negotiable Instrument Act (hereinafter referred to as ―N.I. Act ), setting aside the order of learned ACJM, Bolpur, convicting the accused/respondent. The grievance of the present appellant is that he filed a complaint case being case No. 136 of 2009 before the learned Additional Chief Judicial Magistrate, Bolpur, Birbhum wherein after appreciation of the evidence of the case the learned Magistrate was pleased to convict the accused/respondent under Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Criminal Procedure to which he pleaded not guilty and claimed to be tried. The trial Court records reflected that the prosecution in order to prove its case examined two witnesses namely, the complainant and one Subasish Ghosh as PW2. The prosecution also relied upon five documents which were marked as Exhibits being Ext.1 cheque bearing No. 732538 dated 06.06.2009 of ₹ 7 lac.; Ext.2, dishonor memo; Ext.3, demand notice; Ext.4, postal receipt and Ext.5, envelope along with A/D card. The defence examined one Debobrata Halder as DW1 and relied upon two documents being Ext.A, Statement of accounts of M/S Mondal Handicrafts and Ext.B, certified copy of statement of accounts. The evidence of the complainant reflects that so far as the time period required for preferring a complaint under Section 138 of N.I. Act as has been prescribed in the statute has been complied with. The only issue which by way of cross-examination has been repeatedly confronted by the accused was manner in which the loan has been advanced and whether there has been compliance with the loss relating to the Income Tax Act. Surprisingly, a specific question was put in cross-examination on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the Appeal Court made out a new case which was not before the trial Court and erroneously arrived at his finding of acquittal against the evidence adduced before the trial Court. The appellant relied upon the following decisions: Chandrappa and Ors. Vs. State of Karnataka, (2007) 4 SCC 415; P. Venugopal Vs. Madan P. Sarathi, (2009) 1 SCC 492; Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC 16 and Rangappa Vs. Sri Mohan, (2010) 11 SCC 441. Mr. Bhattacharya, learned advocate appearing for the accused/respondent primarily stressed on the issue of scope of appeal against the order of acquittal; the quality of evidence which the prosecution has adduced and how much of the presumption under Section 139 of the N.I. Act would aid the complainant for proving the case. Learned advocate also emphasised that the complainant has failed to substantiate any legal and enforceable debt or liability to bring the case within the ambit of the provisions of the Negotiable Instrument Act. Additionally the learned advocate addressed the Court that the imposition of fine was beyond the jurisdiction of the learned trial Court and the default sentence was contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l circumstance, the cross-examination of PW1 was taken in to consideration and on a specific question it was answered that he does not remember whether the cheque was issued in relation to any loan or not. In Krishna Janardhan Bhat (supra) it has been subsequently held that certain observations made in the said judgment are restricted to the facts of the said case and the facts of the case also reveal that there was a competition in respect of the same nature of business which was run by the parties and on the said foundation an inference was drawn and thereafter the law was applied. In Rangappa Vs.- Sri Mohan reported in (2010) 11 SCC 441, question was raised regarding the existence of the legally recoverable debt based on the judgment of Krishna Janardhan Bhat. The Supreme Court after relying upon the judgment of Hiten P. Dalal Vs.- Bratindranath Banerjee, Mallavarapu Kasivisweswara Rao Vs.- Thadikonda Ramulu Firm, M.M.T.C. Ltd. Vs.- Medchl Chemical Pharma (P) Ltd. was of the opinion that the presumption mandated by Section 139 of the Act do include the existence of a legally enforceable debt or liability and thereafter observed that, to that extent the observations of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment the Learned Sessions Judge was pleased to allow the appeal holding the present accused/respondent not guilty for the charges under Section 138 of N.I. Act. What weighed with the Learned Appellate Court was the notice which was brought on record before the Appellate Court by way of an application under Section 311 of the Code of Criminal Procedure, the same was marked as Ext. 4 at the instance of the complainant/petitioner. The purpose for which the complainant brought the same to the notice of the Appellate Court was to convince the Appellate Court regarding the service of the notice. The learned Appellate Court relied upon the said notice to make the same foundation of an acquittal in a case under Section 138 of the Negotiable Instruments Act. I have considered the contents of the said Ext. 4 which was issued by the Learned Advocate of the accused/respondent to the Learned Advocate of the complainant/petitioner. The first paragraph of the said notice denies any cheque being issued. The second paragraph states regarding the current account No. 721406011000 was closed on 22.04.2009 and a complaint was lodged with the police station being Bolpur P.S. G.D.E. No. 1032 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has ―very substantial and compelling reasons for doing so. A number of instances arise in which the appellate court would have ―very substantial and compelling reasons to discard the trial court's decision. ―Very substantial and compelling reasons exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in ―grave miscarriage of justice ; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ball ..... X X X X Extracts X X X X X X X X Extracts X X X X
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