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TMI Blog2019 (4) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... t stood rebutted and that the defence stood probabalised. From the judgment of the High Court, the significant aspect of the case which stands out is that there has been no appreciation of the evidence or even a reference to the reasons furnished by the first appellate court. Having regard to the law laid down by the three Judge Bench in Rangappa (supra) the appellant duly rebutted the presumption under Section 139 of the Act. His defence that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of acquittal passed by the first appellate court was justified - Appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL NO (S).95-96 OF 2019 (Arising out of Special Leave Petition (Crl.) No (s). 3737-3738 of 2016) - - - Dated:- 18-1-2019 - DR D.Y. CHANDRACHUD AND MR M.R. SHAH, JJ. For The Petitioner (s) : Mr. Jay Kishor Singh, AOR For The Respondent (s) : Mr. Abhay Kumar, AOR, Mr. Saurabh Mishra, Adv., Mr. Vineet Kumar Singh, Adv. And Mr. Himanshu Pal Singh, Adv. JUDGMENT DR. DHANANJAYA Y. CHANDRACHUD, J. Leave granted. These appeals arise from the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequently my client and his wife canceled the power deed and also requested your client to return the cheques and documents. However, your client is very particular to grab house sites along with half way constructed building for him and his father. An attempt was also made earlier in this regard. Your client's father colluding with your client sent a notice dated 09.05.05 containing false allegations to my client to execute the sale deed of said house site situate at the above mentioned survey number in favour of him. Since the attempt frizzled out, now the son, your client is trying in a different way, illegally using the mentioned cheque to harass my client to part with the said house site. As the above reply indicates, the defence of the appellant was that the appellant and his wife and the complainant and his wife had purchased adjacent house sites. The complainant was alleged to have persuaded the appellant to execute a power of attorney in his favour for the purpose of obtaining a housing loan from the financial institutions in Bangalore. According to the appellant as many as four blank cheques of U.T.I Bank Ltd. and a Vysya Bank cheque Book containing ten leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, learned counsel appearing on behalf of the appellant has addressed the submissions on two aspects. First, it is submitted that there is an absence of a legally enforceable debt. Hence, it is urged that the conviction which has been recorded by the High Court is unsustainable. Secondly, it is urged that the appellant discharged the burden which is cast by the provisions of Section 139 and established a defence on a preponderance of probabilities as required by the judgment of this Court in Rangappa (supra). The learned counsel has extensively relied upon the judgment of acquittal by the Additional Sessions Judge dated 5 March, 2012, adopting the appreciation of evidence in that judgment as the submissions of the appellant in support of the present appeal. Learned counsel submitted that the High Court should have been circumspect in overturning the judgment of acquittal. No reasons have been disclosed in the impugned judgment upon assessment of evidence, much less reasons for coming to the conclusion that the acquittal by the first appellate court was either perverse or would lead to a miscarriage of justice. On the other hand, learned counsel appearing on behalf of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibit P-1) in discharge of a legally enforceable debt. Specifically, the defence of the accused is that no payment was made by the complainant to him, in discharge of which the cheques have been issued. His defence was that the cheque was issued to the complainant on an assurance of a loan which would be obtained from a financial institution. This, as we have noted, was also the defence in reply to the notice of demand issued by the complainant. It is in this background, it would be necessary to advert to the material which was relied upon by the first appellate court to acquit the accused-appellant. During the course of his cross-examination, PW-1 admitted that a General Power of Attorney was executed by the appellant in his favour. Admittedly the appellant and the respondent are related and there was some civil litigation between the father of the complainant and the appellant. The complainant admitted that, as a matter of fact, he himself received an amount of ₹ 10 lakhs from the appellant under a loan transaction but stated that he had repaid that amount to the appellant. PW-1 stated that the appellant had requested him for a loan of ₹ 15 lakhs in February 2004. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had presented. The complainant admitted that he had not mentioned anything about the accused having issued these two cheques in his complaint. Nothing was stated by the complainant in regard to the fate of the earlier two cheques which were allegedly issued by the appellant. The non-disclosure of the facts pertaining to the earlier two cheques, and the steps, if any, taken for recovery was again a material consideration which indicated that there was a doubt in regard to the transaction. On a totality of the facts and circumstances and based on the evidence on the record, the first appellate court held that the presumption under Section 139 of the Act stood rebutted and that the defence stood probabalised. From the judgment of the High Court, the significant aspect of the case which stands out is that there has been no appreciation of the evidence or even a reference to the reasons furnished by the first appellate court. The High Court adverted to the judgment of this Court in Rangappa (supra). Having adverted to that decision, the High Court reversed the order of acquittal by holding that a mere denial of the transactions or an omnibus denial of the entire transaction could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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