2018 (3) TMI 1333 - HC - Indian Laws

Acquittal of the respondent no. 1 - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - recovery of hand loan given in cash - Held that - It is now well settled that a statutory presumption, arises in favour of the complainant, where the signature on the cheque is not disputed. The said presumption is a rebuttable presumption. The accused can rebut the presumption on preponderance of probability, which can be done by virtue of cross examination of the complainant s witness or at the time of the statement under Section 313 of Cr.P.C. or by leading defence evidence - Here is a case where the appellant has failed to give any particulars as to the date and time, when he advanced the amount of ₹ 4,50,000/-, which he had paid in cash. There is no writing obtained from the respondent no. 1 and it is also not shown that the said amount was reflected in the Income Tax Returns of the firm, in as much as, the complaint was filed in the capacity of the proprietor of the firm. Coming to the scope, ambit and powers of this Court while considering an appeal against acquittal, it is now well settled that in an appeal of the present nature, this Court cannot re-appreciate the material unless and until the view taken by the subordinate Court is perverse or is an implausible view. It is well settled that where two views are equally possible, this Court would not substitute it s view on the ground that it is more plausible than the one taken by the Court below. Appeal dismissed.

Summary

Issues:
1. Appeal against acquittal under Section 138 of the Negotiable Instruments Act, 1881.

Analysis:
1. The appellant, a retired Central Bank of India employee, had a close relationship with respondent no. 1, who allegedly received a hand loan of ?6,00,000, out of which ?4,50,000 was paid in cash. The respondent issued a cheque for repayment which bounced, leading to a complaint under Section 138 of the Act.

2. The Magistrate convicted respondent no. 1, but the Sessions Judge acquitted him. The appellant argued that the respondent did not rebut the presumption under Section 118 read with Section 139 of the Act. The appellant relied on case law to support his contention.

3. The High Court noted discrepancies in the appellant's claim, such as the lack of documentation for the cash payment and ambiguity regarding the date of the loan. The appellant's attempt to link the loan to his retirement dues was questioned, and the court found the statutory presumption rebutted due to insufficient evidence.

4. The court distinguished previous cases cited by the appellant, emphasizing the need for specific facts in each case to determine if the presumption stands rebutted. The court highlighted that non-compliance with Income Tax Act provisions and absence of reflection in tax returns were relevant factors in this case.

5. Regarding the appeal against acquittal, the court reiterated that it cannot interfere unless the lower court's decision is perverse or implausible. After reviewing the judgment, the court found no grounds for interference, concluding that the appeal lacked merit and dismissing it.