TMI Blog2023 (5) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... loan was of taken by his wife and during subsistence of their marriage. His wife told him that she would take care of the loan. The other defence of the accused person is that the complainant did not have the capacity to extend a sum of Rs. 8,60,000/- as loan. The stand taken by the accused person, appear to be mutually contradictory. If the loan is taken by his wife and his wife assured him that she would take care of the issue of repayment of loan, it indicates that the complainant had the capacity to accommodate the accused person or his wife and to pay a sum of Rs. 8,60,000/- towards loan, as claimed by the complainant - the accused person failed to raise a probable defence to rebut the presumption under Section 139 of the NI Act. Considering the language used in Section 138 of the NI ACT, it can be said that it is only the drawer of the cheque who can be made liable for the penal action under the provisions of the NI Act. It is settled law that strict interpretation is required to be given to penal statutes - When drawer of the cheque issued the cheque and failed to rebut the presumption, there is hardly any reason to dismiss the petition of complaint on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal challenges the judgement and order passed by learned 9th Court of Judicial Magistrate, Alipore, 24-Parganas (South) in connection with the Complaint Case No. C 2532 of 2003, corresponding to TR No. 730 of 2003. By the impugned judgement learned Trial Court recorded an order of acquittal in a proceeding under Section 138 of the NI Act. 2. Mr. Shataroop Purkayastha, learned counsel for the appellant assailing the impugned judgement submits that learned Trial Court failed to appreciate the evidence on record in its proper perspective and the judgement is the outcome of absolute misreading of evidence. It is contended by Mr. Purkayastha that Sri Soumen De and Smt. Paramita De, took a sum of Rs. 8,60,000/- from the Appellant as loan. Soumen De issued a cheque vide No. 612517 dated 2nd January, 2003 drawn on State Bank of India, Esplanade Branch in discharge of their liability to repay the same. The cheque was presented to the State Bank of Hyderabad, Sarat Bose Road Branch which was returned dishonoured for insufficient fund. Statutory notice was given to the drawer of the cheque under Section 138 (b) of the NI Act, by the holder of the cheque, the Appellant herein, calling upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and explained to the accused person and thus, he was seriously prejudiced. The accused persons stood the trial without being informed about the accusation of offence. 9. My attention is drawn to the order dated 24th August, 2011 which runs as follows:- Both sides are present. Accds are examine in u/s 251 CrPC. Punishable offence u/s 138 NI Act. The contents of Plea read over and explained to the accd are in Bengali which he pleaded not guilty by saying nirdos and claims to be trail. Fix 14/11/11 for evidence. 10. It is further submitted that proceeding under Section 138 of the NI Act is to be conducted in the light of Section 260 of the Code of Criminal Procedure. Learned Trial Judge did not follow the procedure as laid down under the Code of Criminal Proceeding. The omissions and infractions, as aforesaid, vitiates the trial. 11. According to Mr. Roy, learned trial court was justified in recording an order of acquittal for the simple reason that the complainant failed to establish that he had sufficient fund to give a sum of Rs. 8,60,000/- to the accused person. As he failed to prove the source money, adverse presumption was the natural consequence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts. 13. According to Mr. Roy, the accused person was not even examined under Section 313 of the Code of Criminal Procedure properly and for that reason also prejudice was caused to him as he did not have the opportunity to explain the incriminating circumstances. 14. True it is the learned Trial Court failed to exercise the jurisdiction vested upon the Court properly when the accused person was examined under Section 251 of the Code of Criminal Procedure. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It further proves, inter alia, that in determining whether any error, omission of irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 11. This Court in Willis (William) Slaney v. The State of Madhya Pradesh [1995 (2) SCR 1140] elaborately discussed the applicability of Sections 535 and 537 of the Code of Criminal Procedure 1898, which correspond respectively to Section 464 and 465 of the Code, and held that in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Viewed in the context of the above observations of this Court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him as loan other than a sum of Rs. 20,000/-. The loan was of taken by his wife and during subsistence of their marriage. His wife told him that she would take care of the loan. The other defence of the accused person is that the complainant did not have the capacity to extend a sum of Rs. 8,60,000/- as loan. In his testimony as DW1, Soumen De stated: I have not taken any loan of ₹ 8,60,000.00 from Dipak Shaw. I had no liability towards him. During cross examination he admitted his signature appearing on the cheque, admitted as Exhibit 2. He further stated: . Fact that after receiving notice I have not replied because I had no liability to repay the amount in the alleged cheque. My ex wife said that she will take care of the matter. It is further evidence which he voluntarily stated during cross-examination Some blank stamp papers and cheque signed by me were kept in custody of my ex-wife. It is fact that all documents cheques etc. that were used, were in the year 2003. I have not lodged any complaint/diary before the local police station stating that blank cheques and stamp papers bearing my signature have been used by my wife. It is fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation . For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 21. From a reading of the said section, it is very clear that in order to attract the provisions of Section 138 of the N.I. Act, a cheque which is dishonoured, will have to be drawn by a person on an account maintained by him with the 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. It is only such a cheque which is dishonoured would attract the provisions of Section 138 of the above Act against the drawer of the cheque. 22. The accused person tried to disown his liability by taking the plea that since it was his ex-wife who took the loan and assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque issued the cheque and failed to rebut the presumption, there is hardly any reason to dismiss the petition of complaint on the ground that the loan was not taken by the drawer of the cheque. In fact, as the cheque was not issued by Paramita De, learned Trial Court had no reason to issue process against her in the proceeding under Section 138 of the N.I. Act, though she may be liable to legal action in other forum. 25. Mr. Roy learned counsel for the respondent vehemently argued that the appellant/ complainant failed to prove that he had sufficient means to lend a sum of Rs. 8,60,000.00/-. Therefore dismissal of his petition of complaint was fait accompli. From the trend of cross-examination of the complainant, PW1 and from the testimony of DW1 it appears that the accused person wanted to create a doubt in the mind of learned trial court and I have no hesitation to say that it was done quite successfully. The impugned judgement demonstrates that the learned trial court decided the issue as if the complainant/appellant had the obligation to prove his case beyond reasonable doubt. This approach of the learned trial court was absolutely erroneous. 26. Hon ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned court below, merely on the ground that learned trial court could have taken a different view based on the evidence on record. But I cannot inspire myself to be agreement with the view catered by Mr. Roy. True it is an order of acquittal should not be normally interfered with unless it is found upon marshalling of the evidence on record that the judgement passed by learned trial court is either wholly unsustainable in law or manifestly perverse. 30. Hon ble Supreme Court in the case of GHUREY LAL VS. STATE OF U.P. reported in (2008) 10 SCC 450 held:- 68. In Chandrappa Others v. State of Karnataka (2007) 4 SCC 415 , this Court held: (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 compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned court has recorded the finding in favour of the accused and disbelieved the prosecution and has founded as a matter of fact that the prosecution has failed to prove its case beyond reasonable doubt, thus giving benefit to the accused. Both these presumptions - jurisprudential and in regard to the factual matrix must be kept in mind and unless the conclusions reached by the court were palpably erroneous or contrary to law or it is likely to result in injustice, the High Court may be reluctant in interfering with the judgment of acquittal. Reference in this regard can also be made to the case of Khedu Mohton Ors. v. State of Bihar : 1970 (2) SCC 450. 20. In a very recent judgment a Bench of this Court in the case of Arulvelu Anr. v. State represented by the Public Prosecutor Anr. : 2009 (10) SCC 2006, while referring with approval the judgment of another equal (Division) Bench in the case of Ghurey Lal v. State of U. P. : 2008 (10) SCC 450 and relying upon various judgments of the court stated the following principles : 34 In Ghurey Lal v. State of Uttar Pradesh [(2008) 10 SCC 450] a two Judge Bench of this Court of which one of us (Bhandari, J.) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interfered by the appellate court. However, exercise of judicial discretion would be guided by these principles. It is neither permissible nor possible to enunciate any straightjacket formula which can universally be applied to all the cases. The court will have to exercise its discretion keeping in view the facts and circumstances of a given case. The court within the stated parameters will well be within its jurisdiction to interfere with the judgment of acquittal. Thus, we will have to examine the matter from the point of view whether in the facts of the present case and evidence on record, High Court was justified in reversing the judgment of acquittal and convicting the accused of an offence under Section 307 of the Code. conviction - the High Courts/appellate courts must rule in favour of the accused. 32. It goes without saying that an accused person is presumed to be innocent unless proved guilty and an order of acquittal strengthens such presumption in favour of the accused person but the same rule cannot be made applicable with same rigour while dealing with an offence under section 138 of the NI Act, where a presumption is available that the holder of the cheque r ..... 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