9911796707
TMI Blog2016 (5) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to the payment of such amount by the respondent. The appellant had not taken a plea that prior to execution of Exhibit-1 agreement, there had been other previous transactions - Law is well settled that in an appeal against acquittal, the appellate Court has the power to reappraise the evidence on record to come to its own conclusion. While doing so, it has an obligation to consider each and every matter on record having a bearing on the questions of fact and the reasons assigned by the court below in support of the order of acquittal. If two views are reasonably possible on the basis of the evidence on record, the view which is favourable to the accused must be preferred. If the view taken by the trial court while acquitting the accused is a possible and reasonable view, the High Court ought not to interfere with such an order of acquittal only because of the fact that it is possible to take a contrary view. Appeal dismissed. - Criminal Appeal No. 174 of 2008 - - - Dated:- 20-5-2016 - Arup Kumar Goswami, J. For the Appellant : P.J. Saikia, Advocate. For the Respondents : P. Borah, Advocate. JUDGMENT Arup Kumar Goswami, J. 1. Heard Mr. P.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2005, he had not done anything for recovery of the amount. It is stated by him that he knew Basistha Ojha and Ajay Sarma, who are employed with the Firm of the accused, namely, Neelam Steel Industry, and that a case was lodged against them by the accused. He had also stated that he had transactions with the accused. He had denied the suggestion given that the accused had paid back the amount payable under Exhibit-1 agreement. 5. PW-2 is the bank official, who deposed with regard to insufficiency of amount in the bank account of the accused. PW-3 is an advocate, who deposed with regard to drafting of the Agreement (Exhibit-1). 6. In his evidence as DW-1, the accused person stated that Basistha Ojha had introduced him to the complainant and that Basistha Ojha used to arrange funds, operated the bank accounts and cheque book was also retained by him. He stated that he used to sign cheques so that money could be withdrawn for urgent works when he was out of station. He admitted taking of ₹ 2,00,000/- from the complainant and that the same was repaid back after 3(three) months. He had also signed 2(two) cheques as security, which were handed over to Basistha Ojha. He made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, on the other hand, has submitted that the positive case of the complainant was that the respondent had taken a loan of ₹ 2,00,000/- vide Exhibit-1 agreement dated 28.11.2002 and he had not whispered at all in the complaint petition or in the evidence that the sum of ₹ 2,35,000/- was paid by the respondent/accused. It is submitted by him that in the complaint petition also, the complainant had not referred to any other transaction. Mr. Bora has submitted that the respondent had discharged his liability by making payment of the aforesaid amount against the agreement (Exhibit-1). It is submitted by him that because of the mischief played by the Manager of the respondent that the cheque in question had gone to the hand of the complainant and there being no legally enforceable date, merely because the cheque came to be dishonoured, Section 138 of the N.I. Act is not attracted. In this connection, he has referred to a decision in Krishna Janardhan Bhat-Vs-Dattatraya G. Hegde, reported in (2008) 4 SCC 54. 11. I have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 12. It will be appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty which presupposes a legally enforceable debt; and (i) That the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 31. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for providing the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct. 32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
