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TMI Blog2022 (7) TMI 1491X X X X Extracts X X X X X X X X Extracts X X X X ..... angarambhai, original accused Pradipkumar Hargovindbhai Patel and others jointly decided to purchase a land belonged to Jain Mahajan Trust, Palanpur. In the said land, the complainant had 30% share i.e. 22710 sq. mtrs. of land, which the accused decided to purchase from the complainant and an agreement, Exh. 29 to that effect was also entered into between them on 10.11.1997 for a sale consideration of Rs.5,70,620/-. Out of the said amount, the respondent - accused paid Rs.3,09,000/- and for rest, the accused issued cheques, respectively dated 02.01.1998 and 02.02.1998 for Rs.1,86,540/- each. However, on 04.06.1998, when the complainant deposited the cheques in the Union Bank, Palanpur, the same were returned by the bank with an endorsement "Stop Payment". On enquiring with the bank, the complainant allegedly found that, in fact, no sufficient fund was there in the account of the accused. Accordingly, the complainant issued a legal notice dated 17.06.1998 under the provisions of the NI Act, which was served upon the respondent - accused, who replied the said notice on 17.07.1998. Since the respondent No. 1 did not pay the cheque amounts, the complainant constrained to file a complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2 The learned advocate for the appellant submitted that in fact, no sufficient amount was lying in the bank account of the respondent - accused and hence, with mala fide intention, stop payment of cheques was made. In her submission, the learned Sessions 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 under Sections 118(a) and 139 of the NI Act. 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, however, the learned Sessions Judge has not properly appreciated the evidence on record and thereby, has committed an error in reversing the judgment and order of the trial Court and recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, she urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. 3.4 In support, the learned advocate for the appellant has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, the learned Sessions Judge has rightly acquitted the accused of the charges levelled against him. 4.3 It is submitted that when the agreement, Exh. 29 was executed, it was made to understand that the property belonged to the appellant - complainant having 30% share in the same. Accordingly, the respondent No. 1 decided to purchase the same and also made the part payment and for rest, issued cheques in question. However, subsequently, it came to the knowledge of the respondent No. 1 that the property was of the Jain Panjrapol Trust and the appellant had no right/title in the same. Further, it was learnt that the said trust had neither sold nor agreed to sale the land in question in favour of the appellant - complainant. Accordingly, on realizing that the respondent No. 1 was cheated and the complainant breached the trust, he got the payment stopped. He submitted that, attention was also drawn of the complainant in that regard and also demanded the cheques back, but the complainant sought time to return and then, deposited the same in the bank. The learned advocate for the respondent No. 1 further submitted that even the demanded amount is not as per the so-called out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) " (i) The High Court's decision is based on totally erroneous view of 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edbhai 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 reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate 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 discussion, we shall proceed to examine the judgment of the trial court in this case." 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which 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 committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be filed as the respondent No. 1 did not pay the outstanding amount. 7.3 Whereas, as the per the case of the respondent No. 1, he intended to purchase the land in question and accordingly, made the part payment and for the rest, issued cheques in question, however, as soon as he came to know about the land being not belonged to the complainant, he approached the complainant, however, thereafter, the complainant initiated the proceedings in question. In the submission of the respondent No. 1, since, the agreement itself is invalid as being without consideration, there is no question of debt being legally enforceable debt. Further, the respondent No. 1 has gained nothing out of such a transaction. 7.4 From the facts and record, following salient points have emerged: i) agreement, Exh. 29 was entered into between the complainant and the respondent No. 1, whereby, the complainant had agreed to sell his 30% share in the land in question to the respondent No. 1 for the sale consideration of Rs.5,70,620/-; ii) consequent upon the said agreement, the respondent No. 1, admittedly, paid Rs.3,09,000/- to the complainant and for rest, issued three cheques; iii) there is nothing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, in the overall facts and circumstances of the case, the learned Sessions 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 and in view of the aforesaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Sessions Judge. 7.6 So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, 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 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 proba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a conclusion, which does not call for any interference at the hands of this Court. 8. The Court has gone through the decisions relied upon by the learned advocate for the appellant - original complainant, which are 15 in number. A perusal of the same reveals that they are mainly on the aspect of presumption under Section 139 of the NI Act, which is indisputably rebuttable one. There cannot be dispute as regards to ratio laid down in the same, nonetheless, as discussed herein above in detail, the debt is not proved to be the legally enforceable debt. Further, the respondent - accused has succeeded in rebutting the presumption against him, by showing preponderance of probability. Besides, in V. Sampath (supra), the bounced cheque was issued towards balance sale consideration wherein, the sale transaction was not completed, however, the accused was already in possession of the sale property. Nonetheless, in the case on hand, the sale property itself does not belong to the complainant; further, it is not the case that the accused is in possession of the same; the transaction is without any consideration (property in question). Accordingly, these decisions would be of no help to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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