TMI Blog2023 (8) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the consideration. If the accused discharges the onus of proof showing that the existence of consideration was improbable or doubtful and the execution of the promissory note, the onus would be shifted to the complainant. Then he will be obliged to prove the existence of the consideration. The available evidence clearly indicates that the accused had no compelling need to borrow the specified amount, considering that they possessed Rs. 7,00,000/- in their bank account at the time of the Exs. P1 and P2 promissory note transactions. The complainant has not provided a satisfactory explanation or demonstrated the source of her income that would enable her to lend such a substantial sum to the accused. The accused have presented substantial evidence before the Court, and based on this, the complainant's assertion that they issued a cheque on 03.02.2013 is proven to be inaccurate. The evidence adduced supports the view that the accused's version is more likely and credible in this context - It is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if another view is possible, then also the appellate Court cannot substitute its view by reversing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the drawer . Later, on 04.03.2013, the complainant got issued Ex.P5 legal notice to the accused, for which the accused gave a reply on 14.03.2013 under Ex.P6, but the accused did not pay any amount and kept quiet. Hence, the complainant filed a complaint against the accused. 5. The learned V Additional Judicial First Class Magistrate at Kakinada took cognizance under Section 138 of N.I. Act. After the appearance of the accused and after furnishing copies of documents under Section 207 of Cr.P.C., they were examined under Section 251 of Cr.P.C. concerning the allegations in the complainant case, for which they denied the allegations, pleaded not guilty and claimed to be tried. 6. During the trial on behalf of the complainant, the complainant himself was examined as P.W. 1 and marked Exs. P1 to P6. After the closure of complainant s evidence, the accused were examined under Section 313 of Cr.P.C. concerning the incriminating circumstances appearing in the evidence, for which they denied the same and reported defence evidence. A. 1 himself was examined as D.W. 1 and got marked Exs.D1 to D4 documents to prove their case. 7. The learned V Additional Judicial First Class Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e courts considering an appeal against an order of Acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is unreasonable, it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra 1973 CriLJ 1783 ). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat 1996 CriLJ 2867 : While sitting in Judgment over an acquittal, the appellate Court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative, the order of Acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of Acquittal cannot be sustained given any of the above infirmities, it can then and then only reappraise the evidence to arrive at its own conclusions. 12. The Hon ble Supreme Court, in Ghurey Lal vs State of U.P. 2008(10) SCC 450, while referring to the case of Sheo Swarup v. King Emperor [AIR 1934 PC 227(2)] discussed the ambit and scope of the powers of the appellate C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to the drawer of the Cheque within thirty days from the receipt of the notice from the bank that the Cheque was returned dishonoured; and (iii) The holder of the Cheque fails to make the payment of the said amount of money within fifteen days from the receipt of the notice. 14. The complainant was examined as P.W. 1 and got marked Exs. P1 to P6 documents. It is the case of the complainant that A. 1 borrowed Rs. 3,00,000/- from the complainant and executed Ex. P1-Promissory Note, dated 27.03.2011 and A.2 also borrowed Rs. 3,00,000/- from her and executed Ex. P2-Promissory Note. 15. The 1st appellant/A. 1 was examined as D.W. 1. It is not disputed that A. 1 was retired as Assistant Reserve Sub-Inspector. According to his evidence, he and his wife jointly borrowed Rs. 50,000/- from the complainant in April 2010 at the interest rate of Rs. 10/- per Rs. 100/- per month. At the time of the loan transaction, the complainant obtained two blank promissory notes, i.e. one from his wife and another from him and one blank Axis Bank cheque from them, and the said Cheque bearing number is 401701. In the chief examination itself, he deposed that the signatures on Exs. P1, P2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade the basis for rejecting the claim because the obligation upon the plaintiff to lead evidence to prove his case could not have been insisted upon because the defendant has prima-facie or initially in not discharge his onus of proof by showing directly or probabalizing the existence of non-consideration . 19. It is not in dispute that Ex.P3-Cheque contains the signature of the accused, and the said Cheque was generated from the account of the accused. When once the accused admitted the signatures and on the request made by the accused, the payments were stopped, a presumption would arise that the Cheque was drawn for consideration on the day on which the cheque bore and the Court had to presume that the holder of the Cheque received it, for discharge of any debt or liability. 20. In light of well-settled legal principles, the burden lies on the accused to prove the non-existence of consideration by bringing on record such facts and circumstances, which would lead the Court to believe the non-existence of the consideration. If the accused discharges the onus of proof showing that the existence of consideration was improbable or doubtful and the execution of the promissory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,00,000/- available in the said joint passbook. Furthermore, Ex.D3, an account copy provided by the Branch Manager, outlines the account details of the accused from 30.04.2010 to 03.02.2015. 24. As per D.W. 1 s version, he retired from the service on 30.06.2010. Ex.D3 indicates that at the time of transactions detailed in Exs. P1 and P2, Rs.7,83,960/- was available in the bank account. Given this balance, it becomes difficult to accept the complainant's assertion that the accused borrowed Rs. 6,00,000/- from her. According to the accused s version mentioned in the reply notice and supported by DW.1 s testimony, DW.1 retired from service on 30.06.2010 and received Rs.9,00,000/- from the Government in November 2011. They repaid the borrowed amount of Rs. 50,000/- along with the interest that they had taken in April 2010. Subsequent to settling the amounts, the accused requested the complainant to return the promissory notes and a blank cheque. However, she informed them that these documents were misplaced. This led the accused to suspect the complainant's intention and the possibility of these empty documents being misused. Consequently, in July 2011, they informed Axis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying 18% interest per annum. 26. Regarding P.W. 1's financial capacity, she mentioned during her cross-examination that they do not possess any house or properties in Kakinada. She currently resides in a rented house. Additionally, she acknowledged that she did not file any suit based on Exs. P1 and P2, the promissory notes. Interestingly, she didn't provide a reason for not filing a suit. She also admitted that the accused individuals had issued stop-payment letters to their bank before 03.02.2013. Notably, during the cross-examination of D.W. 1, there was no suggestion made attributing motives for addressing the bank with a stop-payment letter two years before the alleged issuance of the Cheque. This omission indicates that no motives were being assigned to the accused in connection with this action. Given that no such motives were suggested or implied, and there was no cross-examination of D.W. 1 in this regard, the Court agrees that the Additional Sessions Judge's observation is valid. This observation holds that the accused's version of events is more credible and plausible. 27. In the cross-examination of P.W. 1 also stated that she does not know whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial evidence before the Court, and based on this, the complainant's assertion that they issued a cheque on 03.02.2013 is proven to be inaccurate. The evidence adduced supports the view that the accused's version is more likely and credible in this context. 31. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if another view is possible, then also the appellate Court cannot substitute its view by reversing the Acquittal into conviction unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 32. In a decision reported in Mohan @ Srinivas @ Seena @ Tailor Seena vs. State of Karnataka 2021 (15) SCALE 184 , the Hon'ble Apex Court has observed the scope of section 378 of the Criminal Procedure Code as under:- Section 378 Cr.P.C. enables the State to prefer an appeal against an order of Acquittal. Section 384 Cr.P.C. speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, the presumption of innocence gathers strength before the Appellate Court. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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