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TMI Blog2015 (7) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced various amounts ranging from Rs. 30,000/-to Rs. 80,000/-to the respondent, totalling to Rs. 7 lakhs. The first respondent had promised to repay the said amount within a month from the date of the last payment of Rs. 75,000/-on 05/12/2007. However, she failed therein. The appellant with the intervention of the Avdhuth Kakodkar, the husband of the first respondent could obtain two post dated cheques from the first respondent for Rs. 3 Lakhs and Rs. 4 Lakhs each. The present appeal pertains to the cheque dated 09/05/2008 for Rs. 3 Lakhs. On presentation of the said cheque for realisation, it was dishonoured on account of insufficient funds and difference in the signature. In such circumstances, the appellant, after issuing a statutory notice, had filed the complaint under Section 138 of the Act. 3. At the trial, the appellant examined himself along with one Mirajkar, the Bank Manager (PW2), Devidas Kakodkar (PW3), a witness on the promissory note dated 20/08/2007 and one Narayan Mierkar (PW4), who was allegedly present when the first respondent had approached the appellant with a request for financial accommodation. The appellant also produced certain documents, including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse inference. Reliance is placed on the decision of Kerala High Court in the case of V. Vijaykumar Vs. M. T. Vijayan reported in 2011 Cri.L.J. 343. It is submitted that the view taken by the learned Magistrate is based on improper appreciation of the evidence on record, requiring interference. 8. On the contrary, it is submitted on behalf of the first respondent that the learned Magistrate has properly appreciated the oral and documentary evidence on record, in order to come to the conclusion that the appellant has failed to establish that there was any legally enforceable debt or liability arising against the first respondent and in favour of the appellant. It is submitted that the whole case set up by the appellant is improbable and not inspiring confidence. It is submitted that on his own saying, the appellant had advanced various amounts over a period of time and all these amounts are said to be advanced in cash. It is submitted that the PW1 has admitted during his cross-examination that these amounts are not reflected in the income tax returns. The learned Counsel submitted that such an advance of an amount in excess of Rs. 20,000/-in cash, would be in breach of Section 269 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." This has been considered and relied on by the Hon'ble Supreme Court, in a recent decision in the case of "Basappa Vs. State of Karnataka" reported in (2014)5 SCC 154. Thus, it is only when the view taken by the Court below is found to be either perverse or an impossible view that the Appellate Court can justifiably interfere. In other words, in a case where two views are equally possible, the Appellate Court cannot substitute its view on the ground that it is more plausible view. In that context, the powers available in an appeal against acquittal are limited and circumscribed. 10. Turning to the present case, admittedly, the appellant had retired from the school when various advances of the amounts from June 2006 is said to be made to the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts paid earlier, were not repaid. 11. Now coming to the promissory note exhibit 40, the said document is dated 20/12/2007 and is written on a stamp paper dated 31/03/2003 in the name of Advocate Kudchadkar. It is significant to note that the appellant has neither made a mention about the first respondent having executed the promissory note in the notice exhibit 9 dated 22/05/2008 and even in the complaint. Ordinarily, one of the material circumstances to be established in a prosecution of the present nature is that the cheque should have been shown to be issued in discharge of a legally enforceable debt or liability. The existence of such a promissory note by the first respondent was a material circumstance and would have found place in the notice as well as the complaint. However, that is lacking. 12. It is trite that presumption under Sections 118 and 139 of the Act can arise only where the signature is admitted. In the present case, it appears from the cross-examination of PW1 that the first respondent had disputed her signature on the cheque. It cannot be gainsaid that the first respondent had not made any attempt to get the documents examined. The fact remains that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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