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TMI Blog2012 (10) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the High Court in having interfered with the order of acquittal by the learned trial Judge without proper reasoning is, therefore, liable to be set aside and is accordingly set aside. Consequently, the conviction and sentence imposed in the judgment impugned is also set aside. The amount deposited by the appellant with the trial Court in a sum of ₹ 25 lakhs with accrued interest, if any, shall be refunded to her on production of a copy of this judgment. - CRIMINAL APPEAL NO.1594 OF 2012 - - - Dated:- 12-10-2012 - Dr. B.S. Chauhan And Fakkir Mohamed Ibrahim Kalifulla JJ. J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. The appellant/accused is aggrieved by the judgment dated 17.03.2010 passed in Criminal Appeal No.1707/2007 of the High Court of Kerala at Ernakulam. The respondent herein preferred a complaint against the appellant under Section 142 of the Negotiable Instruments Act (hereinafter called the Act ) for an offence punishable under Section 138 of the Act. According to the complainant, the appellant/accused entrusted the work of construction of an Old Age Home and a Chapel at Punnaveli, Pathanamthitta District based on an agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was further directed that in default of appearance before the trial Court, the trial Court would be free to proceed against the appellant for taking coercive steps for executing the sentence. At the time when special leave petition was moved, based on the undertaking of the appellant, she was directed to deposit a sum of Rs.25 lakhs in the trial Court within two weeks. Subject to the said condition notice was issued and interim stay was also granted subject to fulfillment of the said condition. Subsequently, it was reported on 10.11.2010 that the amount directed to be deposited was also deposited. We have heard Mr. Basava Prabhu Patil, Senior Counsel for the appellant and Shri V. Giri, Senior Counsel for the respondent. We have also perused the material papers placed before us, the judgment of the trial Court as well as that of the High Court. Mr. Basava Prabhu Patil, Senior Counsel for the appellant in his submissions primarily contended that the appellant discharged her burden by rebutting the initial presumption contemplated under Section 118 read along with Section 139 of the Act and that having regard to the overwhelming preponderance of probabilities existing in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by referring to the respective documentary evidence as well as the version of P.W.1 before reaching the conclusion about the guilt of the appellant, we find that the High Court completely failed to consider and appreciate the documents marked on the side of the appellant. We find that though the High Court made a reference to those specific Exhibits, the attention to which was drawn by the learned counsel, namely, Exhibit D-3, Exhibits P-6 to P-8, Exhibits D- 4(A) to D-4(F) series vouchers as well as Exhibit D-4(J) voucher unhesitatingly stated that he did not propose to enter into any finding on merit as the same was unwarranted in the case on hand considering the nature of allegations and claim contained in the case. It also went on to state that in spite of those materials, in its conclusion, the appellant failed to produce whatever records available in her possession to show that no amount was due from her to the respondent. When we made a comparative consideration of the analysis made by the trial Court while holding that no offence was made out as against the appellant, as against the above reasoning of the learned Judge, in the order impugned in this appeal, we are conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... variation in the stand of the appellant, namely, the one in the reply notice and the other in the written statement the same did not materially affect the stand of the appellant in the light of the overwhelming evidence in support of her stand. The fact that the cheque was not in the handwriting of the appellant strengthens the defence version that it was not executed in favour of the respondent. There was no reliable documentary evidence adduced by the complainant to hold that a sum of Rs.25 lakhs was due to him warranting execution of Exhibit P-1 cheque. There was no amount legally due to the respondent to hold that Exhibit P-1 cheque was as a matter of fact issued by the appellant in favour of the respondent in order to hold that he was a holder of the cheque. It was based on the above reasoning, the trial Court ultimately concluded that no offence was made out as against the appellant under Section 138 of the Act in order to convict her under Section 142 of the Act. While such an elaborate consideration was made by the trial Court for acquitting the appellant, it will be appropriate to refer to the nature of consideration made by the High Court which has been stated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was due from the appellant to the respondent. Such an approach of the High Court, in our considered opinion, has displayed the total perversity in its approach while reversing the order of the trial Judge. Even, Mr. V. Giri, learned Senior Counsel for the respondent in spite of his best efforts was unable to convince us to support the above conclusion found in the judgment of the High Court. That apart having considered the conclusions of the learned trial Judge, we find that those conclusions were drawn by adducing cogent and convincing reasoning and we do not find any fault in the said conclusions drawn by the learned trial Judge. In the circumstance, the principles set out in the decision relied upon by the learned counsel for the appellant in M.S. Narayana Menon alias Mani (supra) as regards the presumption to be drawn and the preponderance of probabilities to be inferred, as set out in paragraphs 31 to 33, are fully satisfied. Those principles, set out in paragraphs 31 to 33, can be usefully referred to which are as under: 31. A Division Bench of this Court in Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal albeit in a civil case laid down the law in the following te ..... 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