2022 (5) TMI 305 - HC - Indian Laws

Dishonor of Cheque - Acquittal of the accused - in cases where two views are possible, whether the appellate court should interfere with the finding of acquittal recorded by the court below? - HELD THAT - It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. The Criminal Appeal being devoid of merits is dismissed.

Issues Involved:
1. Validity of the acquittal of the accused under Section 138 of the Negotiable Instruments Act.
2. Examination of evidence and burden of proof.
3. Legal presumptions under Sections 138 and 139 of the Negotiable Instruments Act.
4. Appellate court's scope in reviewing acquittal judgments.

Detailed Analysis:

1. Validity of the Acquittal of the Accused under Section 138 of the Negotiable Instruments Act:
The appellant challenged the acquittal of the accused by the learned 7th Judicial Magistrate, First Class, Kalol, arguing that the judgment was "illegal, erroneous, contrary to law and against the evidence." The appellant contended that the accused had issued a cheque for Rs. 4,00,000/- which was dishonored due to insufficient funds, and no dispute regarding the signature or body initials of the cheque was raised. The appellant also argued that the accused did not reply to the legal notice, thereby implying acceptance of the debt.

2. Examination of Evidence and Burden of Proof:
The appellant claimed to have paid Rs. 4,00,000/- to the accused through a combination of cheques and cash. However, the trial court found that the appellant failed to produce documentary evidence such as a bank passbook, banakhat, or third-party deposition to substantiate the claim. The court noted that the appellant admitted in cross-examination that no banakhat was registered and no suit for recovery was filed. Additionally, the appellant did not provide any writing to support the cash payment of Rs. 2,75,000/-. The appellant's accountant, who allegedly kept a record of the payments, was not examined as a witness.

3. Legal Presumptions under Sections 138 and 139 of the Negotiable Instruments Act:
The appellant argued that under Section 139 of the Negotiable Instruments Act, the burden of proof shifted to the accused to rebut the presumption of liability. The appellant relied on the case of Rangappa Vs. Mohan, where the Supreme Court held that the accused must provide evidence to rebut the presumption. However, the respondent's counsel argued that the presumption under Section 139 is rebuttable and can be discharged by showing the preponderance of probabilities. The respondent cited the case of Basalingapa Vs. Mudibasappa, where the Supreme Court held that the burden on the accused is not heavy and can be discharged by direct evidence or by relying on the material submitted by the complainant.

4. Appellate Court's Scope in Reviewing Acquittal Judgments:
The appellate court emphasized that it has full power to review and re-appreciate the evidence upon which the order of acquittal is founded. However, it must bear in mind the presumption of innocence in favor of the accused, which is further reaffirmed by the trial court's acquittal. The court cited the case of State of Rajasthan versus Ram Niwas, which held that the appellate court should not interfere with the trial court's finding of acquittal unless there are special reasons. The court also referred to the case of Arulvelu versus State, which stated that the appellate court should be slow in setting aside a judgment of acquittal, particularly when two views are possible.

Conclusion:
The appellate court concluded that the findings of the trial court were just and proper, in consonance with the evidence on record, and no other conclusion was possible. The court held that the appellant failed to discharge the burden of proof and did not provide sufficient evidence to substantiate the claim of payment. The court also noted that the presumption under Section 139 of the Negotiable Instruments Act was rebutted by the accused. Therefore, the appeal was dismissed, and the judgment and order of acquittal passed by the trial court were upheld.

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