2023 (11) TMI 568 - HC - Indian Laws

Dishonour of Cheque - acquittal of the accused - cheque issued towards legally enforceable debt - Whether the judgment of acquittal passed by the trial Court is perverse and arbitrary so as to call for any interference by this Court? - HELD THAT - In the instant case, the accused has raised a defence of financial capacity. No doubt, accused has not raised this defence by replying to the notice. However, in TEDHI SINGH VERSUS NARAYAN DASS MAHANT 2022 (3) TMI 797 - SUPREME COURT , the Hon'ble Apex Court has clearly observed that the accused inspite of non-issuance of reply notice can raise a defence of financial status by leading cogent evidence, on the basis of cross-examination of complainant or pleadings made in the complaint itself. In the instant case, the complainant nowhere asserted that she mobilized such a huge amount of Rs. 1,50,000/- in 2007. As rightly observed by the trial Court she has not even examined her husband to prove the financial status of her husband or the financial assistance made by her husband. Further, accused is not required to prove his defence on the same standard as that of complainant by proving the same beyond all reasonable doubt. He can prove his defence only on the basis of the preponderance of probability. The view taken by the learned Magistrate in view of challenging the financial status of the complainant is a possible view and in view of the full bench decision of Apex Court in M/S. KALAMANI TEX ANR VERSUS P. BALASUBRAMANIAN 2021 (2) TMI 505 - SUPREME COURT case the view taken by the learned Magistrate cannot be disturbed. Further, when two conclusions are possible, the view favourable to the accused shall prevail. The point under consideration is answered in the negative - the appeal being devoid of any merits, does not survive for consideration - Appeal dismissed.

Summary

Issues involved:
The judgment involves the challenge to the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by the trial court.

Factual Matrix:
The complainant provided a hand loan of Rs. 1,50,000 to the accused, who issued a cheque for Rs. 50,000 towards part payment, which was dishonored for insufficient funds, leading to the filing of a complaint.

Contentions and Evidence:
The appellant contended that the cheque and signature were admitted, invoking the presumption under Section 139 of the N.I. Act. However, the accused raised a defense regarding the financial capacity of the complainant to advance the loan, challenging the presumption.

Judgment Analysis:
The court noted that while the cheque belonged to the accused and bore his signature, the defense raised regarding the complainant's financial status impacted the presumption under Section 139. The court cited precedents emphasizing that the accused can challenge the financial status even without replying to the notice.

Decision and Reasoning:
The court found that the defense raised by the accused regarding the financial capacity of the complainant was plausible, and the presumption under Section 139 was not applicable. It was highlighted that when two conclusions are possible, the view favorable to the accused prevails. Therefore, the judgment of acquittal by the trial court was upheld, and the appeal was dismissed.