2014 (6) TMI 1054 - HC - Indian Laws

Dishonor of Cheque - acquittal of the accused - cross-examination of the complainant - preponderance of probabilities - initial presumption under Section 118 and 139 of the N.I. Act - HELD THAT - The initial presumption under Sections 118 and 139 of Negotiable Instruments Act cannot be said to have been rebutted by the accused. Of course, the accused need not rebut the presumption beyond all reasonable doubt as it is incumbent upon the complainant to prove his case beyond reasonable doubt. Nevertheless, the accused has to place sufficient materials to convince the Court that his case is probabilised when it is compared with the case of the complainant. If the accused has failed to establish that his case is proved by means of preponderance of possibility that is to say, probabilities placed by the accused have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt. There are no hesitation to hold that the Trial Court has committed a serious error in appreciating the legal aspects and as well as the factual aspects as detailed above, and came to a wrong conclusion. No Court can come to such conclusion on the basis of above said materials on record. The findings recorded by this Court are based on the evidence on record. The Trial Court even not taken any pains to appreciate the evidence on record in detail to arrive at a proper conclusion - the Trial Court has committed a serious error in acquitting the accused even though sufficient materials are available on record in favour of the complainant and that the accused has not proved his defence by probabilities. The judgment of acquittal recorded by the Trial Court is hereby set aside - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Whether the Appellant has made out any reasonable or substantial ground to interfere with the Judgment of acquittal recorded by the Trial Court?

Issue-wise Detailed Analysis:

1. Grounds for Interference with Judgment of Acquittal:
The appellant contended that the accused admitted the transaction and claimed the cheque was forged by his brother's son. The accused also claimed to have repaid the amount through cheques and cash, and argued that no amount was due, hence no reply was given to the legal notice under Section 138 of the Negotiable Instruments Act.

2. Presumption under Sections 118 and 139 of N.I. Act:
The appellant argued that the accused's defenses were not proven even by the preponderance of probabilities, and therefore, the initial presumption under Sections 118 and 139 of the N.I. Act should favor the complainant, necessitating the conviction of the accused.

3. Evidence and Trial Court's Judgment:
The complainant's case was that the accused took a loan of Rs. 50,000 and issued a cheque for repayment, which bounced due to insufficient funds. Subsequently, a second cheque for Rs. 45,000 was issued, which also bounced as the account was closed. The complainant issued a notice, which was not replied to by the accused. The Trial Court acquitted the accused, noting the complainant's failure to show possession of such funds and lack of income tax returns.

4. Appellate Court's Analysis:
The appellate court found the Trial Court erred by not appreciating the evidence properly. The accused's admission of transactions and repayment claims were not substantiated with evidence. The accused's claim of forgery was not supported by any action against the alleged forger or any communication to the bank. The appellate court noted that the cheque was returned with the reason "account closed," not due to signature mismatch, supporting the complainant's case.

5. Legal Principles for Reversing Acquittal:
The appellate court referred to the Supreme Court's guidelines on reversing acquittals, emphasizing that an appellate court should intervene if the Trial Court's findings are perverse, patently illegal, or lead to a miscarriage of justice.

6. Conclusion:
The appellate court concluded that the Trial Court failed to appreciate the evidence and the legal presumptions under Sections 118 and 139 of the N.I. Act. The accused did not rebut the presumption of liability adequately. The appellate court reversed the acquittal, convicted the accused under Section 138 of the N.I. Act, and sentenced him to pay a fine of Rs. 75,000, with Rs. 70,000 as compensation to the complainant, and a default sentence of six months simple imprisonment.

Order:
The appeal was allowed, the Trial Court's judgment was set aside, and the accused was convicted and sentenced as detailed above. The Trial Court was directed to implement this order.