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2023 (2) TMI 1226 - HC - Indian LawsDishonour of Cheque - acquittal of the drawer of a cheque - discharge of legally enforceable debt or not - revision under Sections 397 read with Section 401 of Cr.P.C. - Whether the finding of the learned first appellate Court that Ex.P1 cheque was not given in discharge of debt and that Ex.P1 cheque was materially altered are findings based on evidence and in accordance with law? - HELD THAT - It is to be mentioned here that the case of the complainant that Ex.P1 cheque in its physical form was received by Pw.1 from the accused is a fact that is admitted by the accused all throughout the trial as he stated specifically even in his evidence as Dw.1 that he physically handed over Ex.P1 cheque to Pw.1. The cheque bears the signature of the drawer. Pw.1 stated that it was given by accused. Dw.1 in his evidence categorically stated that he signed the cheque and Ex.P1 cheque bears his signature. Thus, there is legitimate handing over of the cheque which bears the signature of the drawer and that much is undisputed - As per the evidence of Pw.1 and also as per the evidence of Dw.1 there were business transactions between them and both sides stated that each of them was maintaining books of accounts concerning these business dealings. According to Pw.1 towards repayment of what was overdue the accused gave him Ex.P1 cheque. That there was overdue was shown by complainant through Ex.P8 statement of account. Dw.1 during his cross examination verified it and admitted the truth of its contents. Ex.P1 cheque as is available on record bears the date 03.01.2003. Since the date is specifically given and is available on the negotiable instrument by the time it came to be considered by the Courts below there was mandate of the law in Section 118(b) of the Negotiable Instruments Act, 1881 to the affect that the Court shall presume, until contrary is proved, that every negotiable instrument which bears a date was made or drawn on such date. The contrary has to be proved and this presumption has to be dislodged by the one who questions the correctness of the date - there was absolutely no material to think any probability that the accused did not put the date on Ex.P1 and did not hand it over to the complainant on the date that is available on the cheque but gave it on any different date. Accused never issued any notice to complainant for return of his cheques on the promise that he had discharged the debt. Learned first appellate Court without eliciting any experts opinion and without anybody's invitation and without considering all that relevant and material evidence and the law simply rushed to a conclusion that in its opinion there is a change in the colour of ink and Ex.P1 cheque was materially altered and was not given towards discharge of debt. No reasonable prudent man would have arrived at such conclusion on the kind of evidence that was available on record. Learned first appellate Court failed to look at the statute and the precedent and failed to apply the law to the facts. Its appreciation of evidence is unreasonable capricious and is perverse. Therefore, the conclusions reached by it cannot be supported and therefore the judgment of the first appellate Court shall be set-aside. Having concluded to set-aside the judgment of the first appellate Court the result that emerges is that the acquittal granted to the accused is incorrect. In such circumstances, the accused shall be punished with appropriate sentence. However, since this Court is not sitting in appeal and this Court is only sitting in revision it cannot convert a finding of acquittal into one of conviction by virtue of legislative mandate in Sub Section (3) of Section 401 of The Code of Criminal Procedure, 1973. The Judgment dated 23.01.2007 of the learned VIII Additional District and Sessions Judge (Fast Track Court) Vijayawada in Criminal Appeal No. 235 of 2005 is set aside and the matter is remitted to the said Court with a direction to rehear the appeal and render its judgment afresh in accordance with law as expeditiously as possible - this Criminal Revision case is allowed.
Issues Involved:
1. Legitimacy of the cheque issued under Section 138 of the Negotiable Instruments Act. 2. Validity of the complaint and service of statutory notice. 3. Material alteration of the cheque and its implications. 4. Appellate Court's assessment and judgment. 5. Revisional jurisdiction and its application. Issue-wise Detailed Analysis: 1. Legitimacy of the Cheque Issued under Section 138 of the Negotiable Instruments Act: The complainant alleged that the accused issued a cheque dated 03.01.2003 for Rs. 2,60,000, which was dishonored due to insufficient funds. The trial court found the accused guilty under Section 138 of the N.I. Act, based on the evidence that the accused admitted to signing the cheque and the existence of a subsisting liability. The appellate court, however, acquitted the accused, citing that the cheque bore different inks, suggesting it was issued as a security at the commencement of the business relationship in 1999, not in 2003. 2. Validity of the Complaint and Service of Statutory Notice: The complainant sent statutory notices via registered post and certificate of posting, which the accused did not respond to. Both the trial and appellate courts agreed that the complaint was validly filed and the accused received the notice but did not repay the amount. The appellate court, however, focused on the material alteration of the cheque and not on the validity of the complaint and notice service. 3. Material Alteration of the Cheque and Its Implications: The appellate court concluded that the cheque was materially altered due to the difference in ink, supporting the accused's claim that it was issued as a security. This led to the rebuttal of the presumption under Section 139 of the N.I. Act. However, the High Court found this conclusion unreasonable and unsupported by evidence, emphasizing that the accused admitted to signing the cheque and that there was no proof of repayment or issuance of an undated cheque. 4. Appellate Court's Assessment and Judgment: The appellate court's judgment was based on its observation of the ink difference, which it deemed as material alteration. The High Court criticized this approach, stating that the appellate court failed to consider the statutory presumption under Section 118(b) of the N.I. Act and the established legal principles that a signed blank cheque remains valid if filled by the payee. The High Court found the appellate court's judgment perverse and unsupported by material evidence. 5. Revisional Jurisdiction and Its Application: The High Court, exercising its revisional jurisdiction under Sections 397 and 401 Cr.P.C., aimed to preserve justice in accordance with criminal jurisprudence. It emphasized that revisional powers are invoked when findings are perverse, untenable, or based on no material evidence. The High Court concluded that the appellate court's judgment was grossly erroneous and set it aside, directing a rehearing of the appeal by the appellate court. Conclusion: The High Court allowed the criminal revision case, set aside the appellate court's judgment, and remitted the matter for rehearing and fresh judgment in accordance with law. The High Court's decision was guided by the principles of criminal jurisprudence, statutory presumptions under the N.I. Act, and the need for a reasoned and evidence-based judgment.
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