TMI Blog2022 (6) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... r in part, of any debt or other liability. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. It is observed by the learned trial Judge that in the case on hand, the complainant has not produced any documentary evidence to prove his legal debt from the accused and hence, it cannot be believed that the complainant had legal dues from the respondent accused. This Court has also gone through the documentary evidence as well as the depositions of the witnesses examined by the complainant to prove its case, however, a perusal of the depositions of the witnesses reveals not an iota of evidence suggesting about the amount of Rs.2,30,000/- was due to the complainant from the accused, except the fact that they had given their due amount (of loan instalments) to the respondent accused. Further, considering the material on record, it appears that the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material. The findings recorded by the learned trial Judge do not call for any interference - Appeal dismissed. - R/CRIMINAL APPEAL NO. 442 of 2007 - - - Dated:- 23-6-2022 - HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI MR BHARAT K DAVE(246) FOR THE APPELLANT(S) NO. 1 MR HIMANSU M PADHYA(1611) FOR THE OPPONENT(S)/RESPONDENT(S) NO. 1 JUDGMENT 1. This appeal is filed by the appellant original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 16.09.2006, passed in Criminal Case No. 359 of 1999 by the learned Judicial Magistrate First Class, Unjha, recording the acquittal. 2. Nutshell facts are that appellant original complainant Bhumika Lease Finance Ltd. through its Assistant Manager Jitendrakumar Amrutlal Brahmbhatt, lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.45,000/- from the complainant company for development of his business. Since, the respondent No. 1 did not pay the instalments and on being approached by the complainant, he issued a Cheque bearing No. 0170486 dated 20.04.1999 drawn on Bank of Baroda, Ambaji Branch for Rs.2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the cheque in question. Further, in his submission, the learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him. 3.2 The learned advocate for the appellant further submitted that the amount of loan, which was being collected by the respondent accused was required to be deposited by the accused to the appellant company for which, the respondent accused was giving the receipts to them and the said amount was deposited in the bank account at Ambaji. He submitted that, this aspect is suggestive of the fact that the cheque in question, for Rs.2,30,000/- was inclusive of the amount recovered by the respondent accused, which was further required to be deposited to the appellant company as legal dues. Accordingly, the learned trial Judge ought to have taken into consideration the said aspect of the matter. 3.3 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt and all the witnesses also have supported his case, the learned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person 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 reaffirmed and strengthened by the trial Court. 6.2 Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse. 6.3 Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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. 16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) 20. an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Koteswara Rao v. State of A.P (2009) 10 SCC 636). (emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: 31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court s judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt or other liability. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. Following aspects have been considered by the learned trial Judge: i) the respondent had availed loan of Rs.45,000/- from the appellant on 21.11.1998 (Exhs. 28 29); ii) there appeared to be several corrections/interpolation with whitener viz. term of loan, amount of EMI etc. in the document (Loan Agreement) at Exh. 29; iii) in the Loan Agreement, Exh. 29, no seal and/or signature of the appellant company and only signature of the respondent accused is there; iv) the respondent accused has accepted the Promissory Note, Exh. 30, which is for Rs.45,000/- and as per the terms of the loan, the loan amount was required to be paid in equal instalment of Rs.4,650/- for 12 months @24%, totalling to Rs.55,800/- and accordingly, at the most, the appellant is enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence appears to have been there on record. 7.4 Besides, in the Loan Agreement Exh. 29 also, as per the learned trial Judge there are interpolation/corrections. Further, there found no seal and signature of the appellant company, except the signature of the respondent - accused in the said agreement, Exh. 29, which ought to have been there. 7.5 In the overall facts and circumstances of the 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. 7.6 Further, under Sections 118(a) and 139 of the NI Act, there are provisions as regards presumption. At this juncture, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (2019) 5 SCC 418, wherein, the Court has observed as under: 23. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 23.1. Once the execution of cheque is admitted Section 139 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. 7.8 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 presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability . 7.9 Thus, the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under the said section. Thus, in the case on hand the learned Magistrate has rightly concluded that the dues were not legally recoverable dues. 7.10 On re-appreciation and reevaluation of the ocular and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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