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2021 (8) TMI 1138 - HC - Indian LawsDishonor of cheque - maintainability of appeal - correctness of acquittal of accused - Allegation is that the complainant has misused the signed cheque which was kept in the office of the accused was stolen - Whether the appeal lies against the order of acquittal passed by the First Appellate Court or whether the revision lies as contended by the learned counsel for the respondent? - HELD THAT - In the case on hand, there are divergent findings given by the Trial Court as well as the First Appellate Court and hence, an appeal lies under Section 378 of Cr.P.C. and the complainant has rightly filed the appeal and the question of filing the revision does not arise as contended by the learned counsel for the appellant and the very contention that the revision lies cannot be accepted since, there is a clear bar to invoke Revisional jurisdiction when there is a provision for filing an appeal. Hence, the very contention of the learned counsel for the appellant that the appeal is not maintainable cannot be accepted - question answered in negative. Whether the First Appellate Court has committed an error in acquitting the accused? - HELD THAT - On perusal of both oral and documentary evidence available on record, it is the specific case of the complainant that he had lent money to the accused on 15.10.2006 and in order to repay the said loan the accused had issued a cheque on 25.01.2007. When the cheque was presented it was dishonoured with a shara insufficient funds . The complainant has relied upon document Ex.P1-cheque. The accused did not dispute his signature available on Ex.P1. The complainant also relied upon Ex.P3-legal notice and the said notice was sent to the residential address of the accused Kurubarahalli and also to his driving school - The accused has to lead plausible evidence before the Court and this Court has taken note of the evidence of DW1 that his evidence cannot be believed and the same is not trustworthy and he makes an attempt to give evading answer in the cross-examination in respect of other two cases filed against him for cheque bouncing. Though he denies, he admits that two cases are filed against him in the cross-examination and hence his evidence is not credible. The statutory presumption available is in favour of the complainant. The other observation made by the appellate court that when the amount is paid in excess of ₹ 20,000/- and the said amount to be paid through cheque only under the Income Tax Act also cannot be accepted. Here, the transaction is between friends and both of them having acquaintance with each other and also running Crackers Chit. P.W.1 claims he was an agent and D.W.1 claims he was a Director - the appellate Court has committed an error in coming to the conclusion that the accused rebutted the evidence of the complainant and in the cross-examination PW1, nothing is elicited except they are good friends and the complainant was also visiting the driving school of the accused. Hence, the appellate Court has committed an error in reversing the finding of the trial Court without drawing presumption available in favour of the complainant. Therefore, nothing inspires this Court that the evidence led by the accused amounts to rebutting the evidence of the complainant. In the case on hand also, the accused has admitted the cheque available in Ex.P1 and failed to rebut the presumptions and nothing is placed before the Court and no cogent evidence to disbelieve the case of the complainant. Hence, the presumption is in favour of the complainant. Unless, a contrary evidence is placed before the Court, the contention of the learned counsel for the appellant that there was no transaction and the cheque has been stolen and misused cannot be accepted. Hence, the approach of the First Appellate Court is erroneous and it requires interference by this Court. Appeal allowed.
Issues Involved:
1. Maintainability of the appeal under Section 378(4) of Cr.P.C. 2. Error in acquitting the accused by the First Appellate Court. 3. Appropriate order to be passed. Detailed Analysis: Issue 1: Maintainability of the Appeal The primary contention was whether an appeal lies against the order of acquittal passed by the First Appellate Court or if a revision lies as contended by the respondent. The appellant invoked Section 378(4) of Cr.P.C., which allows a complainant to appeal to the High Court against an order of acquittal passed in any case instituted upon complaint, provided special leave is granted by the High Court. The Court examined Section 378, which clarifies that appeals in cases of acquittal can be filed with special leave, and Section 401, which restricts revision when an appeal is possible. The Court concluded that an appeal is maintainable under Section 378(4) and not a revision, citing precedents and the Division Bench's interpretation in K.H. Ganesh Rao vs. H. Gopal. Issue 2: Error in Acquitting the Accused The appellant argued that the First Appellate Court failed to appreciate the evidence correctly and did not consider the statutory presumption under Section 139 of the NI Act. The complainant had lent a hand loan of ?64,000 to the accused, who issued a cheque that was dishonored. The accused claimed the cheque was stolen and misused, but no evidence supported this defense. The First Appellate Court erred by focusing on the complainant's failure to prove the source of funds and the lack of documentary evidence for the loan, ignoring the presumption under Section 139 of the NI Act. The High Court re-appreciated the evidence, noting that the accused admitted his signature on the cheque and failed to rebut the presumption. The complainant's evidence was consistent and supported by the legal notice and postal receipts. The accused's defense was deemed untrustworthy, especially given his admission of other cheque bounce cases and inconsistent statements about his address. Issue 3: Appropriate Order The High Court found the appeal maintainable and the First Appellate Court's judgment erroneous. The Court restored the Trial Court's judgment, convicting the accused under Section 138 of the NI Act. The accused was directed to pay twice the cheque amount as a fine, including litigation costs, within eight weeks or face simple imprisonment for one year. The Trial Court was instructed to enforce the sentence if the fine was not paid. Conclusion The High Court allowed the appeal, set aside the First Appellate Court's acquittal, and restored the Trial Court's conviction, directing the accused to pay the fine or undergo imprisonment. The Registry was instructed to transmit the records to the Trial Court for further action.
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