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2024 (10) TMI 972 - HC - Indian LawsDishonour of cheque - security cheque or not - Presumption of innocence - challenge to acquittal of accused - HELD THAT - The learned First Appellate Court acquitted the accused solely on the ground that the repeated presentation of the cheque and issuance of notice are not permissible. This finding of the learned First Appellate Court cannot be accepted. It was laid down by the Hon ble Supreme Court in MSR Leathers 2012 (10) TMI 232 - SUPREME COURT that there is nothing in the N.I.Act to prevent the repeated presentation of the cheque or issuance of successive notices. It was observed ' the prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly.' Therefore, the learned First Appellate Court erred in acquitting the accused on the ground that the cheque was presented repeatedly and the notices were issued twice. Hence, the judgment passed by the learned First Appellate Court is not sustainable. Since, the learned First Appellate Court has not touched the other grounds challenging the judgment and order passed by the learned Trial Court, therefore, the matter is required to be remitted to the learned First Appellate Court for its afresh disposal as per the law. This is also necessary because the scope of appeal against the conviction is wider than the scope of appeal against the acquittal and it is not permissible for this Court to simply affirm the judgment of the learned Trial Court when the accused had no opportunity to get the finding on the points raised by him before learned First Appellate Court. The present appeal is allowed and the judgment passed by the learned Sessions Judge, Hamirpur, is ordered to be set aside. The matter is remitted to the Court of learned Sessions Judge, Hamirpur, for its afresh disposal as per law.
Issues Involved:
1. Validity of the repeated presentation of a cheque and issuance of successive notices under Section 138 of the Negotiable Instruments Act (NI Act). 2. Presumption of innocence and the scope of appellate intervention in acquittal judgments. Issue-wise Detailed Analysis: 1. Validity of Repeated Presentation of Cheque and Issuance of Successive Notices: The central issue in this case was whether the repeated presentation of a cheque and the issuance of successive notices are permissible under Section 138 of the NI Act. The trial court had convicted the accused for the dishonor of a cheque, but the first appellate court acquitted the accused, holding that the complainant could not issue two notices for the same cheque, as the cause of action arises only once. The appellate court relied on precedents, including the Supreme Court judgment in Sil Import, USA v. Exim Aides Silk Exporters, Bangalore, and a High Court judgment in Ramesh Sachdeva v. Shahbaz Khan. However, the High Court in the present appeal found that the first appellate court's reliance on these judgments was misplaced. It cited the Supreme Court's ruling in MSR Leathers v. S. Palaniappan, which clarified that there is no bar in the NI Act against the repeated presentation of a cheque or the issuance of successive notices, as long as the conditions stipulated in the proviso to Section 138 are met. The High Court emphasized that the purpose of Section 138 is to compel the drawer to honor their commitments, and thus, prosecution based on a second or successive default is permissible. This position was further supported by judgments in Kamlesh Kumar v. State of Bihar and Bir Singh v. Mukesh Kumar. Consequently, the High Court concluded that the first appellate court erred in acquitting the accused based on the repeated presentation of the cheque and issuance of notices. 2. Presumption of Innocence and Scope of Appellate Intervention in Acquittal Judgments: The High Court also addressed the issue of the presumption of innocence and the scope of appellate intervention in cases of acquittal. It referred to the Supreme Court's guidance in Mallappa v. State of Karnataka, which underscores that an appeal against acquittal cannot be allowed merely on a difference of opinion. The presumption of innocence is a cardinal principle, and it is strengthened when a trial ends in acquittal. The appellate court must ensure that the trial court thoroughly appreciated the evidence and that its findings are not illegal or perverse. If two views are possible, the view favoring the accused's innocence should prevail, as it reinforces the presumption of innocence. In this case, the High Court found that the first appellate court's decision was based solely on the erroneous interpretation of the law regarding the presentation of the cheque and notices. Since the first appellate court did not consider other grounds challenging the trial court's judgment, the High Court decided to remit the matter back to the first appellate court for fresh disposal. The High Court emphasized that the scope of appeal against conviction is broader than that against acquittal, and the accused should have the opportunity to contest the points raised before the first appellate court. Conclusion: The High Court allowed the appeal, set aside the judgment of the first appellate court, and remitted the case for fresh disposal. The parties were directed to appear before the first appellate court on a specified date. The High Court's decision underscores the legal permissibility of repeated cheque presentations and successive notices under the NI Act and reiterates the principles governing appellate intervention in acquittal judgments.
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