2022 (4) TMI 924 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - acquittal of the accused - burden to prove - preponderance of probabilities - Section 118-A and 139 of the N.I Act - HELD THAT - It is settled proposition of law that in a case under Section 138 of the N.I. Act, the complainant gets the benefit of presumption under Section 118-A and 139 of the N.I Act, but, it does not mean that undue benefit will be given to the complainant. It is also equally settled that a complainant in a case under Section 138 of the N.I Act has to establish his case beyond reasonable doubt, and the accused has to prove his case following the doctrine of preponderance of probabilities. The signature of the complainant as well as the scribe of the said document appeared to be signed and written by the same ink and pen, but, the signature of the respondent no. 1 appears to be of different ink and pen. Though, it is not mandatory that the signature of the writer has to be of the same ink, but, in the context of the case, these circumstances have led this court to suspect the said document (Exbt.-8) and this court has reason to question the very integrity in execution of the said document. Moreover, there is overwriting in mentioning the date of execution of the said document. Initially, it appears to be written as 10.05.2016 , but, later on, by way of overwriting, it appears to be written as 18.05.2016 - These inconsistencies as are surfaced in the said declaration i.e. Exhibit 8 have led this court to draw adverse inference against the genuinity of the execution of the said document (Exbt.- 8). Moreover, the scribe in his cross-examination has stated that he did not identify anybody who signed this document (Exbt.- 8). That apart, most interestingly, the complainant deposing as PW 1, in his cross-examination, has stated that I do not know whether I have submitted written document or any agreement . In the instant case, though the respondent no. 1 has not adduced any evidence, but, he has been able to rebut the initial presumption that he had issued the cheque in discharge of his liability to repay his debt to the complainant. Moreso, learned trial court has acquitted the accused, the respondent no. 1 herein, and on such acquittal there is double presumption of the innocence of the respondent no. 1. It is settled law that if the view as taken by learned trial court is a reasonably possible view, in that case, the appellate court should not disturb it just because it feels that another view of the matter is possible. It is equally settled that an order of acquittal will have to be disturbed if it is perverse. Appeal dismissed.

Summary

Issues Involved:
1. Legally enforceable debt under Section 138 of the N.I. Act.
2. Rebuttal of presumption by the accused.
3. Integrity and authenticity of the documentary evidence (Exhibit 8).
4. Appellate court's interference with the trial court's judgment of acquittal.

Issue-wise Detailed Analysis:

1. Legally enforceable debt under Section 138 of the N.I. Act:
The appellant claimed that the respondent took a loan of ?2,00,000 for his wife's treatment and issued a cheque, which was dishonored due to insufficient funds. The trial court held that the complainant could not establish the enforceable debt. The appellate court reiterated that in cases under Section 138 of the N.I. Act, the complainant benefits from the presumption under Sections 118-A and 139 of the N.I. Act, but this does not mean undue benefit will be given. The complainant must establish his case beyond reasonable doubt, while the accused must prove his case based on the preponderance of probabilities.

2. Rebuttal of presumption by the accused:
The respondent rebutted the presumption by claiming that he had lost his cheque book, passbook, and ATM card, and had reported the loss to the police. The respondent also alleged that the complainant and another individual conspired to misuse the lost cheque. The appellate court found that the respondent successfully rebutted the initial presumption of liability.

3. Integrity and authenticity of the documentary evidence (Exhibit 8):
The appellate court scrutinized Exhibit 8, a written memorandum purportedly proving the loan. The court found several discrepancies:
- The document appeared to be a promissory note rather than an agreement.
- Signatures were not at the end of the recitals.
- Differences in ink and pen used for signatures raised suspicions.
- Overwriting on the date of execution.
- The scribe did not identify the signatories.
- The complainant's own testimony showed uncertainty about the document's existence.

These inconsistencies led the court to question the genuineness of Exhibit 8, undermining the complainant's claim of an enforceable debt.

4. Appellate court's interference with the trial court's judgment of acquittal:
The appellate court emphasized the principle that an appellate court should not disturb the trial court's judgment if it is a reasonably possible view. The trial court's acquittal of the respondent, based on the evidence and the law, was not found to be perverse. Therefore, the appellate court upheld the trial court's judgment, dismissing the appeal.

Conclusion:
The appellate court dismissed the appeal, affirming the trial court's judgment of acquittal. The court found that the respondent successfully rebutted the presumption of liability, and the complainant failed to establish the enforceable debt beyond reasonable doubt. The discrepancies in Exhibit 8 further weakened the complainant's case, leading to the conclusion that the trial court's judgment was not perverse and did not warrant interference.