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TMI Blog2015 (6) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... um of Rs. 2,92,212/- (comprising of 2,32,272/- towards the price of soft drink and Rs. 59,940/- being the cost of empties i.e. bottles and crates lying in possession of the first respondent). It was contended that the first respondent had issued a cheque dated 17/11/2009 in favour of the appellant, which was drawn on ICICI Bank Ltd., Kolhapur Branch for a sum of Rs. 2,92,212/- towards the satisfaction of the outstanding amount. When the appellant deposited the cheque with its Banker i.e. Yes Bank, Margao, Goa, it was dishonoured on account of "payment stopped by drawer". This was communicated to the appellant on 23/11/2009, following which the appellant issued a notice and thereafter, filed the complaint. It appears that the first respondent had sent a reply dated 31/12/2009 to the notice, denying the liability to pay the amount. The appellant sent a counter reply to the same, dated 04/02/2010. At the trial, the appellant examined its Manager Rajesh Nandedkar (PW1) and Reena Naik (PW2) and produced certain documents, including the invoices and the statement of Ledger Account. The first respondent examined himself and one Niraj Shaha (DW2). 3. The learned Magistrate framed a solita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption arising in favour of the appellant, which has not been rebutted. It is submitted that the reasons articulated by the learned Magistrate for upholding the rebuttal, cannot be sustained and the first respondent has not overcome the barrier of Section 139 of the said Act. It is, therefore, submitted that the view taken by the learned Magistrate would be an impossible view, requiring interference. On behalf of the appellant, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Rangappa Vs. Sri Mohan, reported in AIR 2010 SC 1898, Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal, reported in AIR 1999 SC 1008 and a decision of this Court in Krishna P. Morajkar Vs. Joe Domnic Ferrao and anr., reported in 2014(2) Bom.C.R. (Cri.) 738. 6. On the contrary, it is submitted on behalf of the first respondent that while the appellant/ complainant is obliged to prove its case beyond reasonable doubt, the first respondent can prove his defence and discharge the statutory burden on preponderance of probability. It is submitted that the learned Magistrate has rightly come to the conclusion that the statutory presumption stands rebutted in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption 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 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." Thus the examination of the challenge to a judgment of acquittal has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07, the first respondent had sought additional empties to cater to the increased demand of soft drinks, against which Anil Patil had insisted for a blank cheque being issued by way of security. It was specifically contended in the notice reply exhibit 93/c that crates were returned and the respondent demanded back the blank cheque when he was told by Anil Patil that the cheque has been misplaced. This was informed in June 2008. Hence, the first respondent issued the stop payment instruction to the Bank on 24/06/2008. In the reply, the first respondent specifically set up a defence that the respondent was making the payment by cheques of the ICICI Bank upto 18/10/2007. Thereafter, till 02/12/2007, the payment was made by cheques drawn on Indian Bank and from 14/12/2007, to 20/08/2008, the payment was made by demand draft. It was contended that after December 2007 there was no transaction of payment by a cheque, while denying that an amount of Rs. 2,92,212/- was outstanding. The first respondent specifically claimed that there was a reconciliation statement exhibit 68, according to which, the outstanding payment was Rs. 1,10,928/- as on 23/06/2008. It was also claimed that as on 31/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e where the subject cheque was given by the first respondent and after considering the evidence, as also the answers given by the first respondent in reply to the questions put under Section 313 of Cr.P.C., had come to the conclusion and to my mind, rightly so, that the contradictions/ discrepancy would be of no consequence. Lastly, the learned Magistrate has considered the fact that the signature and the body of the cheque appear in different inks, which would be one of the circumstances to probabilise the defence of the first respondent. The witnesses for the appellant had claimed that they are not aware whether Anil Patil had insisted and accepted the blank cheques, as claimed by the first respondent. In that view of the matter, Anil Patil, being the employee of the appellant, could have been examined and would have been the proper witness to negate any such defence. That has not been done. In such circumstances, in my considered view, it has rightly been found that the presumption would stand rebutted. 13. The learned Magistrate has, thereafter, proceeded to examine the evidence whether the appellant has independently proved the existence of a liability of Rs. 2,92,212/- as on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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