TMI Blog2022 (6) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the learned trial Judge has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, considering the evidence on record, it is observed by the learned trial Judge that, in his cross-examination, the complainant has stated that he had given Rs.20 lakh to the accused, out of which, he had arranged Rs.2 lakh from Nathabhai Maganbhai Patel, Rs.2 lakh from Bharatkumar Narandas Patel and Rs.2 lakh from his friend Arvindbhai Chimanbhai Patel. Thus, he had taken an amount of Rs.6 lakh from others, however, to prove such a fact, the complainant has not examined any of above witnesses. On re-appreciation and reevaluation of the oral as well as the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant was constrained to file complaint before the competent Court at Prantij under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as the NI Act ). 2.1 Upon such complaint being filed and subsequent to service of summons, the respondent No. 2 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. In support, the appellant complainant has produced oral as well as documentary evidence. Vide impugned judgment and order dated 10.06.2014, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant original complainant has preferred the present appeal. 3. Heard, learned advocate Mr. Yatin Soni for the appellant original complainant, learned advocate Ms. Devangi Solanki for learned advcoate Mr. N. V. Gandhi for the respondent No. 2 and learned APP Ms. Jirga Jhaveri for the respondent No. 1 State. 3.1 The learned advocate for the appellant original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent accused. The learned advocate for the appellant complainant also submitted that the learned trial Judge also erred in observing that the appellant complainant has not disclosed such income before the Income Tax Department nor has produced any books of accounts and thereby, has failed to appreciate the fact that agriculture income is exempted under the Income Tax Act. 3.5 The learned advocate for the appellant complainant further submitted that as per the case of the respondent accused, he had issued the cheque as one Kodarbhai had borrowed Rs.10,000/- because of illness of his son, against security, on behalf of Kodarbhai. However, it cannot be believed that the respondent accused, who was serving as an Inspector, would give security for such a trivial sum of Rs.10,000/- that too, on behalf of that Kodarbhai. It is further the case of the appellant complainant that he even did not know this Kodarbhai. Further, it is submitted that the respondent accused has not examined this witness. 3.6 The learned advocate for the appellant complainant submitted that the learned trial Judge has erred in appreciating the document Exh. 50 inasmuch as, admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 accused submitted that for invoking the provisions of Section 138 of the NI Act, the debt or other liability means a legally enforceable debt or other liability, which the complainant has failed to prove and accordingly, the learned trial Judge has rightly recorded acquittal. She streneously submitted that at the relevant time, the income of the appellant complainant, admittedly was Rs.1,000/- per month. Further, he had an agriculture income ranging from Rs.2.5 lakh to Rs.4 lakh per annum, however, there are other family members also and accordingly, the learned trial Judge has rightly raised suspicion as to saving of such amount by the complainant and lending the huge amount to the respondent accused. Further, it is the case of the appellant complainant that he had arranged Rs.6 lakh from others, however, not a single witness has been examined by the appellant in support of his case. Accordingly, when the appellant has failed to discharge the initial burden cast upon him to prove the legally enforceable debt,the learned trial Judge has rightly concluded in favour of the respondent accused. 4.2 The learned advocate for the respondent No. 2 has heavily subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 6.4 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already face ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court s acquittal bolsters the presumption of his innocence. Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) 10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. (emphasis supplied). 7. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to one year. Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enumerated by this Court in following manner: 23.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 23.2. The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 23.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 23.4. That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 23.5. It is not necessary for the Accused to come in the witness box to support his defence. 7.3 Thus, the presumption under Section 139 is a rebuttable presumption and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant personally, any amount nor any outstanding was there from the accused. It is also observed by the learned trial Judge that if at all the said certificate was issued in the capacity of Secretary of the mandli only, the complainant could have made mention of the mandli only and not as regards any personal transactions. Thus, considering all these aspects of the matter, the learned trial Judge has come to a conclusion that the accused has succeeded in rebutting the presumption, showing preponderance of probability. 7.4 On re-appreciation and reevaluation of the oral as well as the documentary evidence on record, following aspects have been weighed by this Court: i) the complainant stated to have given Rs.20 lakh to the respondent accused, however, except bare words, there is nothing on record to show that such a big amount was given to the respondent accused; ii) there is also nothing on record to show as to how the complainant arranged the said amount. It is the case of the complainant that he had taken Rs.2 lakh each from three different persons (totalling to Rs.6 lakh), however, admittedly, not a single witness, to substantiate the said fact, has been exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in Bir Singh (supra), the Court has held that, Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough . In the case on hand, from inception, it was the case of the respondent accused that he had not taken any such amount from the appellant complainant. Even he has replied the legal notice of the complainant in which also, he has taken such a stand, which is consistent. Further, the complainant is not in a position to explain with any cogent evidence as to the arrangement of such a big amount, except bare words. Thus, the respondent No. 1 appears to have rebutted the presumption under the provisions of Section 139 of the NI Act and that, the complainant has failed to discharge the initial burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of acquittal passed by the first appellant Court was justified . Accordingly, the Court restored the order of acquittal. In the case on hand also, the complainant has failed to discharge the initial burden of proving the legally enforceable debt. Moreover, the complainant has also failed to establish the source of funds with cogent evidence. Further, as said in the earlier part of the judgment, the respondent has successfully raised the probable defence. 10. At this juncture, it would be apt to refer to a decision of the Apex Court in Krishna Janardhan Bhat v. Dattaraya G. Hegde, passed in Appeal (Cri.) 518 of 2006 on 11.01.2008, wherein the Court has observed thus: The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not matter of presumption under Section 139 of the Act. It merely raises a presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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