2021 (12) TMI 667 - HC - Indian Laws

Dishonor of cheque - insufficiency of funds - discharge of legal liability or not - acquittal of the accused - rebuttal of presumption under Section 139 of the Act - preponderance of probabilities - HELD THAT - The evidence of independent witnesses, DW1 and DW2, would substantiate the defence case set up by the accused. Even in the absence of the expert opinion, the accused had succeeded in proving that the cheque in question was issued in blank in connection with the earlier transaction he had with the complainant. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case is successful in discharging the burden by cross examining PW1 and examining DW1 to DW3 and also producing Exts. D1 and D2 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. There are no reason to interfere with the order of acquittal by the court - appeal dismissed.

Summary

Issues:
Appeal against acquittal under Section 378(4) of the Cr.P.C. in a case involving an offence under Section 138 of the Negotiable Instruments Act.

Analysis:
The complaint alleged that the accused borrowed a sum of ?1,00,000 and issued a cheque towards the discharge of the debt, which was dishonored. The lower court acquitted the accused as the complainant failed to prove the borrowing and issuance of the cheque. The appellant argued that the execution of the cheque was proven, triggering the presumption under Section 138(9) of the NI Act, which the accused failed to rebut. The defense contended that the accused lent money to the complainant on different occasions, with a blank cheque issued as security. The accused presented witnesses and documents supporting this defense. The court discussed the presumptions under the NI Act, emphasizing the burden of proof on the complainant to establish the issuance of the cheque. The defense's case was found probable, supported by witness testimonies and documentary evidence.

The accused filed a petition to compare handwritings on certain documents, but the complainant failed to comply. Despite subsequent court orders, the complainant did not produce the required evidence. The court found the defense version credible, supported by independent witnesses and documentary evidence. The court highlighted that in cases of acquittal, there is a double presumption in favor of the accused, and interference is warranted only in exceptional circumstances. Citing precedent, the court emphasized that if two views are possible, the appellate court should not reverse an acquittal. Given the evidence and circumstances, the court upheld the acquittal, finding no compelling reasons to interfere.

In conclusion, the court dismissed the appeal, affirming the lower court's order of acquittal. The judgment emphasized the importance of burden of proof, credibility of evidence, and the high threshold for overturning acquittals.