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TMI Blog2017 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... altered the same on 11.4.2015. She had also proceeded to state in her cross examination in emphatic terms that the Respondent/Accused on 11.2.2015 itself had handed over the cheque to her. Further, in her evidence, P.W.1 had stated that on what date, she had paid a part sum of ₹ 1,00,000/- to the Respondent/Accused wife, which fact was also not mentioned either in her proof affidavit or in the complaint. Indeed, Section 138 of the Negotiable Instruments Act is a Penal Provision which incorporates strict liability and therefore, it has to be construed strictly. In Law, a Cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of cheque or within the period of its validity, whichever expires earlier. The requirement for an offence under Section 138 of the Negotiable Instruments Act is that the cheque must be drawn 'for the discharge, in whole or in part, of any debt or other liability'. However, the Section does not say that the cheques should have been drawn for the discharge of any debt or other liability of the Drawer towards the Payee. Section 138 of the Negotiable Instruments Act does not in any way preclude power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act was not established beyond reasonable doubt and finally acquitted him under Section 255(1) Cr.P.C. 5.Assailing the legality of the Judgment of Acquittal dated 28.09.2016 in C.C.No.246 of 2015 passed by the trial Court, the Learned Counsel for the Petitioner/Appellant/Complainant submits that the trial Court had failed to appreciate an admitted fact that the transaction was entered into between the Petitioner/Appellant's wife and the Respondent's (Accused) wife. 6.The Learned Counsel for the Petitioner/Appellant urges before this Court that the trial Court had misreading the evidence of P.W.1 and the averments of the Complaint. In fact, there appears to be a non-application of mind by the trial Court in acquitting the Respondent/Accused. 7.It is represented on behalf of the Petitioner/Appellant/ Complainant that the ingredients of Section 87 of the Negotiable Instruments Act, 1881 were not properly construed by the trial Court in a real perspective, which has finally resulted serious miscarriage of Justice. 8.The Learned Counsel for the Petitioner/Appellant/ Complainant, in regard to the plea of 'Material Alteration', contends t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yee was mentioned as 'P.Jayamatha' (Petitioner/Appellant/ Complainant). That apart, the next to the words 'Three', the writing Thousand was scored out and over and above that, it was written as 'LAKs' and next to that on the right hand side, there was short initial affixed. Therefore, it is latently and patently evident that Ex.P1 Cheque was originally written for ₹ 3,80,000/- only. Subsequently, the words 'Thousand' was struck off and over and above it, the 'LAKs' was written. However, in the figure column in Ex.P1 Cheque, it is clearly written as '3,80,000/-'. 14.A cursory glance of the contents of Complaint (filed by the Petitioner/Appellant) in C.C.No.246 of 2015 before the trial Court unerringly points out at para 9 that 'The cause of action for the complaint arose on 06.11.2012 when one K.Komathi had entered into an agreement of sale with the complainant for a sale consideration for a sum of ₹ 7,50,000/- (Rupees Seven Lakh and Fifty Thousand Only) out of which the complainant herein had paid ₹ 3,00,000/- (Rupees Three Lakh Only) by way of a cheque dated 7.11.2012 drawn on City Union Bank, Maraimalai Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement. 18.The clear-cut case of the Petitioner/Appellant is that one Mrs.K.Komathi, being an absolute owner of the property bearing Survey No.21/2 covering an extent of 0.56 cents situated at Pandavakkam Village, Uthiramerur Taluk, Kancheepuram District, had voluntarily approached the Petitioner/Appellant/Complainant in the month of October 2012 for the purpose of selling the aforesaid property on account of her family requirements. Pursuant to which, she had willfully with free consent entered into a Sale Agreement on 06.11.2012 for the aforesaid land measuring an extent of 0.50 cents for a sale consideration of ₹ 7,50,000/- out of which the Petitioner/Appellant/Complainant had paid a sum of ₹ 3,00,000/- through Cheque bearing No.001602 dated 07.11.2012 drawn on City Union Bank, Maraimalai Nagar Branch. Later, the said Komathi had received a sum of ₹ 1,00,000/- in cash towards the sale consideration from the Petitioner/Appellant/Complainant. 19.The grievance of the Petitioner/Appellant/Complainant is that the Cheque dated 11.04.2015 (bearing No.691770) drawn on Canara Bank, Chengalpattu Branch for ₹ 3,80,000/- given by the Respondent/Accused affirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant had stated that the Respondent/Accused as Surety for the amount to be paid by his wife, had issued a cheque. But before the trial Court, on behalf of the Petitioner/Appellant/ Complainant, it was not established that the Respondent/Accused wife was paid with a sum of ₹ 3,00,000/- through cheque based on Sale Agreement. Further, for the alleged payment of ₹ 1,00,000/- in cash by the Petitioner/Appellant/Complainant to the Respondent/ Accused wife, no document or evidence was produced in the main case. Apart from that, the big question revolves around the Petitioner/Appellant/Complainant is that when he was in possession of Ex.P1 Cheque from 11.2.2015 till 11.4.2015, how the Respondent/Accused (husband of the Komathi) had made correction or alteration in Ex.P1 Cheque. Moreover, P.W.1, in her cross examination, had tacitly admitted that the Respondent/Accused gave Ex.P1 Cheque on 11.2.2015, but he corrected/altered the same on 11.4.2015. She had also proceeded to state in her cross examination in emphatic terms that the Respondent/Accused on 11.2.2015 itself had handed over the cheque to her. Further, in her evidence, P.W.1 had stated that on what date, she had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble High Court by pointing out necessary materials that the conclusion/findings arrived at by the trial Court are perverse, capricious and an arbitrary one. As a matter of fact, the High Court has the requisite power to 'Review' the entire gamut of evidence, of course, giving necessary weightage to the views of the trial Court in regard to the credibility of the witnesses concerned. By and large, the 'Judgment of Acquittal' shall not be interfered with because of the simple reason that a presumption of innocence of an Accused get strengthened by means of an acquittal. Furthermore, reappraising the evidence, reconsidering the entire gamut of the issue and to substitute its own view are possible only if the findings reached by the trial Court or against the weight of evidence on record or there is even a misreading of evidence or erroneous appreciation of Fact and Law as the case may be. 27.Also, in exceptional circumstances, an Appellate Court by ascribing reasons should not be hazy to upset the Judgment of Acquittal passed by the concerned Court, if the findings recorded by it are contrary to the evidence on record or if the entire approach of the trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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