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2019 (12) TMI 386 - HC - Indian LawsDishonor of cheque - acquittal of accussed - Respondent No.2/accused failed to discharge the onus in order to rebut the precipice - rebuttable presumptions or not - HELD THAT - From the record, it is evident that altogether three PWs have been examined who are PW-1, Dilip Kumar, PW-2, Binod Kumar and PW-3, Deepak Kumar. Side by side, prosecution has also exhibited Cheque, Ext-1, copy of Advocate notice, Ext-2, Registered Postal receipt, Ext-3, complaint petition, Ext-4. Nothing has been adduced on behalf of defence/Respondent No.2 - The evidence of PWs-1 and 2 are not at all relevant because of the fact that they are not the persons anyway concerned with the affairs, although, came to the side of the complainant, PW-3. PW-3, during course of examination-in-chief has stated that he gave friendly loan of an amount of ₹ 25 Lacs on an undertaking at the end of the accused that the same will be returned back within one month. In the month of April, 2014, a sum of ₹ 1, 24, 000/- was returned back whereupon, ₹ 23, 76,000/- remained due for which, on persistent demand, accused issued a Cheque on 18.06.2014 which he deposited in his account running in the Axis Bank, Danapur which was dishonoured as, the bank had reported that signature is mismatching. From the record, it is evident that nothing has been adduced in defence. On 27.11.2017, while argument was going on, a petition was filed on behalf of defence that the cheque be sent to a hand-writing expert in order to examine the signature over the relevant cheque which the learned lower court vide order dated 10.01.2018 rejected the same and, Respondent No.2/accused had not challenged the same. The appellant is found guilty for an offence punishable under Section 138 of the NI Act and hence is directed to undergo RI for one year as well as fined twice of the amount of cheque, in default thereof, to undergo SI for three months - Appeal allowed.
Issues Involved:
1. Legality of the judgment of acquittal under Section 138 of the Negotiable Instruments Act. 2. Presumption under Section 139 of the Negotiable Instruments Act. 3. Service of notice under Section 138 of the Negotiable Instruments Act. 4. Standard of proof for rebutting the presumption under Section 139. 5. Powers of the appellate court in an appeal against acquittal. Detailed Analysis: 1. Legality of the Judgment of Acquittal under Section 138 of the Negotiable Instruments Act: The appellant/complainant filed an appeal under Section 378(4) of the Cr.PC against the judgment of acquittal dated 08.02.2018, where the respondent/accused was acquitted by the learned ACJM, 1st, Danapur in complaint case No. 855 (c)/2014. The complainant alleged that the accused, a friend, borrowed ?25 Lacs, repaid ?1,24,000, and issued a cheque for the remaining amount, which was dishonored due to insufficient funds. Despite serving a registered Advocate notice, the accused failed to make the payment, leading to the filing of the complaint. 2. Presumption under Section 139 of the Negotiable Instruments Act: The trial court took cognizance under Section 138 of the NI Act after finding a prima facie case. The appellant argued that the lower court failed to appreciate that the cheque was issued by the accused and bore his signature, invoking the presumption under Section 139 of the NI Act, which is rebuttable. The respondent/accused did not provide a cogent explanation to rebut this presumption. 3. Service of Notice under Section 138 of the Negotiable Instruments Act: The appellant claimed to have served a registered Advocate notice on the accused, which is a condition precedent for filing a complaint under Section 138. The respondent argued that there was no evidence of the notice being served. However, the court noted that under Section 27 of the General Clauses Act, 1897, and Section 114 of the Indian Evidence Act, 1872, service of notice is deemed to have been effected once sent by registered post to the correct address, unless rebutted by the drawer. 4. Standard of Proof for Rebutting the Presumption under Section 139: The court reiterated that the presumption under Section 139 is rebuttable and the accused can discharge this burden by raising a probable defense, relying on the materials submitted by the complainant or other evidence. The standard of proof is preponderance of probabilities, not beyond reasonable doubt. The accused did not need to disprove the existence of consideration by leading direct evidence but could rely on circumstantial evidence. 5. Powers of the Appellate Court in an Appeal Against Acquittal: The appellate court has full power to review, reappreciate, and reconsider the evidence upon which the order of acquittal is founded. The presumption of innocence is strengthened when an accused is acquitted by the trial court, and the appellate court should not lightly interfere with the decision unless there is perversity or glaring mistakes in the trial court's judgment. The court cited various judgments emphasizing that the appellate court must give due importance to the trial court's opinion and should only interfere if the trial court's approach was patently illegal or conclusions were unsustainable. Conclusion: The court found that the trial court failed to appreciate the evidence and the presumption under Section 139 of the NI Act. The judgment of acquittal was set aside, and the respondent/accused was found guilty under Section 138 of the NI Act. The respondent was sentenced to one year of rigorous imprisonment and fined twice the amount of the cheque, with a default sentence of three months' simple imprisonment. The respondent was directed to surrender before the lower court within a fortnight to serve the sentence.
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