9911796707
TMI Blog2024 (5) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... and acquitted under Section 255(1) Cr.P.C. 2. The appellant is the complainant and the complaint was filed on the allegation that the son-in-law of the complainant had entered into an agreement with the accused for the construction of the house of the sonin- law of the complainant and subsequently, the accused has withdrawn from the agreement and also agreed to pay the excess amount, Rs.38,000 and towards the discharge of the said liability, the accused has issued Exhibit P1 cheque dated 15.03.2004 for a sum of Rs.38,000/-. It is alleged that when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds and in spite of issuance of statutory notice, the accused failed to pay the cheque amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent argued that a perusal of Exhibit D1 would clearly show that the transaction was between the accused and the son-in-law of the complainant and there is nothing in Exhibit D1 or in the complaint that the complainant advanced any amount to the accused in connection with the construction of the house. It is also pointed out that a perusal of Exhibit P1 cheque would show that the name of the payee is written in blue ink in a handwriting different from the writings regarding the amount, date and signature written with black ink in the cheque. 8. In cross examination, PW1 deposed as follows : 9. The above evidence of PW1 in cross examination clearly shows that the complainant has no definite case as to whether the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as illegal, the onus would shift to the complainant. In Harbhajan Singh v. State of Punjab (AIR 1966 SC 97), the Honourable Supreme Court held that the onus on an accused person might well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities 12. The Honourable Supreme Court considered the nature of the standard of proof required for rebutting the presumption under Section 139 of the Negotiable Instruments Act in M.S.Narayana Menon v. State of Kerala (2006 (6) SCC 39), and it was held that if some material is brought on record consistent with the innocence of the accused, which may reasonably be true, even though it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th an appeal against an order of acquittal in the following manner: "(1) An appellate court has full power to review, re - appreciate 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 conclusions", "glaring mistakes", etc, are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterially altering the same by inserting the name of the complainant as payee in the cheque without the knowledge and consent of the accused. It is pertinent to note that the evidence of PW1 in cross examination would clearly show that he has no definite case as to whether the amount is due to the complainant or to his son-in-law and further, it is in evidence that PW2, the son in law of the complainant, was abroad from 09.03.2003 to 22.07.2005 and therefore, considering the facts and circumstances I find no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and that there is no satisfactory evidence to show that Exhibit P1 cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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