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2017 (8) TMI 2 - HC - Indian LawsOffence under Section 138 of Negotiable Instruments Act, 1881 - Judgment of Acquittal - Held that - As a matter of fact, the complainant who is a Payee under Section 7 of the Negotiable Instruments Act or a Holder in Due Course under Section 9 of the Act, is entitled to seek Leave under Section 378(4) of Cr.P.C., and bringing a Miscellaneous Petition in this regard seeking a prior permission from the High Court is perfectly maintainable in Law. Looking at from any angle, if the Judgment of Acquittal / Acquittal Order is passed in any case instituted upon a complaint , a Petition filed under Section 378(4) of Cr.P.C., seeking Grant of Leave before the Hon ble High Court is clearly maintainable in the eye of Law. It is to be pointed out that an offence under Section 138 of Negotiable Instruments Act, 1881 is not a Regular / Ordinary Crime like Murder Grievous Hurt or Simple Hurt or other criminal case. To put it precisely, the offence under Section 138 of Negotiable Instruments Act, undoubtedly is a civil liability dressed in a criminal colour. Be that as it may it is to be pointed out that the burden is on the complainant in respect of an offence under Section 138 of Negotiable Instruments Act to establish his case against the Respondent / Accused beyond shadow of doubt. But at the same time, it cannot be slightly ignored that the Respondent / Accused is entitled to shake or affect the credibility of the prosecution story by bringing in certain facts / circumstances which point out about his probabilities of the case. In short, an accused in respect of offence under Section 138 of Negotiable Instruments Act is entitled to maintain silent. He need not enter into the box to dislodge the case of a complainant. It is just enough that if he is able to make an inroad into the evidence depositions of witnesses / witnesses of the prosecution side. In view of the qualitative and quantitative discussions as afore stated and also this Court on a careful consideration of the attendant facts and circumstances of the instant case in a cumulative manner is of the earnest view that the Petitioner / Appellant / Complainant has not made out a prima facie case to interfere with the Judgment of Acquittal dated 18.10.2016 passed by the trial court.
Issues Involved:
1. Legality and validity of the Judgment of Acquittal. 2. Consideration of evidence regarding the issuance and purpose of the cheque. 3. Jurisdiction for filing the appeal. 4. Applicability and interpretation of Section 378(4) of Cr.P.C. 5. Burden of proof in cases under Section 138 of the Negotiable Instruments Act, 1881. Detailed Analysis: 1. Legality and Validity of the Judgment of Acquittal: The petitioner challenged the trial court's judgment of acquittal, arguing that the court failed to consider that the respondent had not denied issuing the cheque. The petitioner contended that the trial court overlooked the respondent's admission of the signature on the cheque and the liability to repay the amount. The petitioner argued that this oversight resulted in a miscarriage of justice. However, the trial court had concluded that the evidence presented by the petitioner was insufficient to prove the respondent's liability and found the respondent not guilty under Section 138 of the Negotiable Instruments Act, 1881. 2. Consideration of Evidence: The trial court observed that there was no evidence to show the existing liability as of the date of cheque issuance. The defense raised a probable defense that the cheque was given as security for a chit transaction. The trial court found the evidence of the petitioner insufficient and the defense's evidence sufficient to disprove the petitioner's case. The petitioner argued that the trial court failed to properly consider the evidence of D.W.1 and D.W.2, who admitted the respondent's liability. The petitioner also highlighted that the respondent did not reply to the statutory legal notice, which should be considered an adverse circumstance. 3. Jurisdiction for Filing the Appeal: The respondent argued that the appellate jurisdiction for the trial court's judgment lies with the Principal District and Sessions Court at Thiruvallur, as the cheque was drawn on a bank within Thiruvallur District. The court analyzed Section 378(4) of Cr.P.C., which allows the High Court to grant special leave to appeal from an order of acquittal. The court noted that the High Court possesses the power to reconsider the issue and reappraise the evidence to arrive at its own conclusion. 4. Applicability and Interpretation of Section 378(4) of Cr.P.C.: The court emphasized that Section 378(4) of Cr.P.C. allows a complainant to appeal to the High Court against an order of acquittal. The court referred to several judgments to support the interpretation that the High Court can interfere with an acquittal if the trial court's findings are perverse, arbitrary, or capricious. The court also clarified that the grant of leave to appeal does not preclude questioning the maintainability of the appeal at a later stage. 5. Burden of Proof in Cases under Section 138 of the Negotiable Instruments Act, 1881: The court reiterated that the burden is on the complainant to establish the case beyond a shadow of doubt. However, the respondent can challenge the credibility of the prosecution's case by presenting certain facts or circumstances. The respondent is not required to disprove the case actively but can rely on the weaknesses in the complainant's evidence. The court found that the petitioner had not made a prima facie case to interfere with the trial court's judgment of acquittal, which was free from legal infirmities. Conclusion: The High Court dismissed the Criminal Original Petition, concluding that the petitioner had not made a prima facie case to interfere with the trial court's judgment of acquittal. The trial court's judgment was deemed free from legal infirmities, and the grant of special leave to appeal was not acceded to. The court emphasized the importance of avoiding a miscarriage of justice and upheld the trial court's findings based on the available evidence and legal principles.
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