2017 (8) TMI 3 - HC - Indian Laws

Grant of Special Leave to prefer an Appeal as against the Judgment of Acquittal - offence under Negotiable Instruments Act - Held that - In the Complaint, the Petitioner/ Appellant/Complainant had stated that the Respondent/Accused as Surety for the amount to be paid by his wife, had issued a cheque. But before the trial Court, on behalf of the Petitioner/Appellant/ Complainant, it was not established that the Respondent/Accused wife was paid with a sum of ₹ 3,00,000/- through cheque based on Sale Agreement. Further, for the alleged payment of ₹ 1,00,000/- in cash by the Petitioner/Appellant/Complainant to the Respondent/ Accused wife, no document or evidence was produced in the main case. Apart from that, the big question revolves around the Petitioner/Appellant/Complainant is that when he was in possession of Ex.P1 Cheque from 11.2.2015 till 11.4.2015, how the Respondent/Accused (husband of the Komathi) had made correction or alteration in Ex.P1 Cheque. Moreover, P.W.1, in her cross examination, had tacitly admitted that the Respondent/Accused gave Ex.P1 Cheque on 11.2.2015, but he corrected/altered the same on 11.4.2015. She had also proceeded to state in her cross examination in emphatic terms that the Respondent/Accused on 11.2.2015 itself had handed over the cheque to her. Further, in her evidence, P.W.1 had stated that on what date, she had paid a part sum of ₹ 1,00,000/- to the Respondent/Accused wife, which fact was also not mentioned either in her proof affidavit or in the complaint. Indeed, Section 138 of the Negotiable Instruments Act is a Penal Provision which incorporates strict liability and therefore, it has to be construed strictly. In Law, a Cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of cheque or within the period of its validity, whichever expires earlier. The requirement for an offence under Section 138 of the Negotiable Instruments Act is that the cheque must be drawn for the discharge, in whole or in part, of any debt or other liability . However, the Section does not say that the cheques should have been drawn for the discharge of any debt or other liability of the Drawer towards the Payee. Section 138 of the Negotiable Instruments Act does not in any way preclude power of an individual from owning up other person s liability or insist that the cheque should be one drawn to discharge the liability of the Drawer. As per Section 139 of the Negotiable Instruments Act, there is a presumption, unless the contrary is established, that the Holder of the cheque received the cheque for the discharge in entirety or in part of any debt or other liability. Judgment of Acquittal passed by the trial Court is free from any flaw. Consequently, the Grant of Special Leave sought for by the Petitioner/Appellant/Complainant by means of filing the present Criminal Original Petition before this Court under Section 378(4) Cr.P.C. is devoid of merits.

Issues Involved:
1. Grant of Special Leave to appeal against the judgment of acquittal.
2. Validity of the cheque under Section 138 of the Negotiable Instruments Act.
3. Material alteration of the cheque under Section 87 of the Negotiable Instruments Act.
4. Presumption under Section 139 of the Negotiable Instruments Act.
5. Evidence and burden of proof.
6. Legal principles for overturning an acquittal.

Issue-wise Detailed Analysis:

1. Grant of Special Leave to appeal against the judgment of acquittal:
The Petitioner/Appellant sought special leave to appeal against the trial court's judgment of acquittal dated 28.09.2016 in C.C.No.246 of 2015. The court emphasized that the grant of special leave is not automatic and requires the petitioner to demonstrate that the trial court's conclusions were perverse, capricious, or arbitrary. The High Court has the power to review the entire evidence but typically does not interfere with an acquittal unless the findings are against the weight of evidence or there is a misreading of evidence or erroneous appreciation of fact and law.

2. Validity of the cheque under Section 138 of the Negotiable Instruments Act:
The trial court concluded that the offence under Section 138 was not established beyond a reasonable doubt. The cheque in question had corrections that were not explained by the complainant, leading to the conclusion that the cheque was void. The trial court also noted that no documents or evidence were produced to substantiate the payment of ?3,00,000 by cheque and ?1,00,000 in cash, hence the presumption under Section 139 could not be raised.

3. Material alteration of the cheque under Section 87 of the Negotiable Instruments Act:
The court discussed the concept of material alteration, noting that not all alterations invalidate an instrument, only those that adversely affect the other party's interests. In this case, the cheque had alterations in the date and amount, which were not satisfactorily explained. The complainant admitted that the cheque was altered but failed to provide evidence that the alteration was made with the drawer's consent, thus rendering the cheque void.

4. Presumption under Section 139 of the Negotiable Instruments Act:
Section 139 creates a legal presumption that the cheque was issued for the discharge of a debt or liability. However, this presumption is rebuttable. The trial court found that the complainant did not provide sufficient evidence to prove the existence of a legally enforceable debt or liability. The cheque's alterations and the lack of documentation for the alleged payments weakened the complainant's case.

5. Evidence and burden of proof:
The trial court scrutinized the oral and documentary evidence and found inconsistencies in the complainant's statements. The complainant admitted during cross-examination that the cheque was altered and did not provide evidence of the alleged cash payment. The court emphasized that the burden of proof lies on the complainant to establish the case beyond a reasonable doubt, which was not met in this instance.

6. Legal principles for overturning an acquittal:
The High Court reiterated that an acquittal strengthens the presumption of innocence and should not be overturned lightly. Only in exceptional circumstances, where the trial court's findings are contrary to the evidence or based on wrong appreciation of law and facts, should an appellate court interfere. The High Court found no such exceptional circumstances in this case and upheld the trial court's judgment of acquittal.

Conclusion:
The High Court concluded that the trial court's judgment of acquittal was free from any flaw and dismissed the petition for special leave to appeal. The Criminal Original Petition was found to be devoid of merits and was consequently dismissed.

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