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TMI Blog2025 (5) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1881 ('NI Act'). 7. The brief facts of the cases are that the respective respondents, who are husband and wife, had told the petitioner that they are the legal owners of the entire 2nd floor of property bearing Plot No. WZ- 77 admeasuring 77 sq. yds. out of Khasra No.88/9 and 88/10 situated in the revenue estate of Village Hastsal, Delhi State, Delhi, area known as Colony Prem Nagar, Uttam Nagar, New Delhi-110059 (hereafter 'the subject property') vide registered General Power of Attorney dated 04.03.2011. It is alleged that the respective accused persons agreed to sell the subject property to the petitioner for a sum of Rs. 4,50,000/-. The accused Sandeep Sadana executed an agreement to sell and purchase in favour of the complainant on 10.03.2011. It is alleged that the accused Sandeep also signed a receipt towards total consideration amount and undertook that he would get the permission for the sale of the subject property from the competent authority. It is alleged that despite the entire payment, the accused kept delaying the matter under one pretext or the other and the subject property was not registered in the name of the petitioner. It is alleged that after a lot of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner which he misused even after receiving the entire amount. It was further stated that when the accused Sandeep questioned the petitioner as to why he had filed the complaints, the petitioner told him that he had made late payments and asked him to pay Rs. 40,000/- in Court, due to which he made certain payments before the Court. It was stated that the accused Sandeep had signed the statement qua settlement without reading the same. It was also stated that a complaint had been made by the accused to the Police Station Binda Pur regarding the threats received from the petitioner as well as the cheating and criminal breach of trust. 13. The learned Trial Court acquitted the respective respondents vide the impugned judgments and noted that the accused persons had been able to rebut the presumption under Section 139 of the NI Act. It was observed that the petitioner had failed to prove that the cheques in question had been issued in discharge of liability. The learned Trial Court also took note of the complaint filed against the petitioner at Police Station Binda Pur and observed that the accused persons had put forth a plausible defence regarding misuse of the cheques. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal against acquittal, this Court observed as follows : (SCC p. 221, para 36) "36. Careful scrutiny of all these judgments leads to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law." The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the appellate court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)] 41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513] 42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]" (emphasis supplied) 23. In the present case, the respondents have sought to prove their case on preponderance of probabilities that the cheque in dispute was not issued in discharge of any legally enforceable debt. The defence case, in essence, is that the subject property had never been sold against any consideration and instead the same had been mortgaged for a loan of Rs. 4,50,000/-. It was further contended that the said amount had already been repaid to the petitioner. In support of the said contention, the accused persons had also placed seventeen receipts and the statement of the account of the accused Jyoti showing payment of Rs. 3,34,820/- to the petitioner. 24. In b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant is taken at the highest, it is also peculiar to note that while a debt of Rs. 4.5 lakhs has been claimed to be due on part of the accused persons, the total amount of the cheques in dispute comes to Rs. 6.5 lakhs. No explanation has been given by the complainant as to why the cheques were drawn for an amount higher than the alleged debt of Rs. 4.5 lakhs. 29. The main thrust of the petitioner is on the fact that the parties had apparently settled the matter at one point and the respondents had failed to make the payments as per the settlement. It is argued that the sheer fact that the parties had settled the matter, shows the legitimacy of the debt. The accused persons had denied the settlement and contended that the statement dated 25.07.2014 was signed by accused Sandeep without reading the same. The accused Jyoti altogether denied any knowledge of the settlement. It was also stated that the petitioner had assured the accused Sandeep that he would withdraw the present complaints on receiving Rs. 30,000/- to Rs. 40,000/-. 30. A party may enter into a compromise for a number of reasons, especially, to avoid undergoing through the harassment of trial and mitigate the unc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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