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TMI Blog2021 (6) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... p of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is no quarrel about the above said legal proposition. But, this is a case where the accused has succeeded to bring on record such facts and circumstances - It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. There are no reason to interfere with the order of acquittal by the court - appeal dismissed. - Crl. A. No. 128 of 2011 (A) - - - Dated:- 24-3-2021 - Dr. Kauser Edappagath, J. For the Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initial burden cast upon him. The counsel further submitted that, if at all the presumption under Section 139 of the N.I. Act is available to the complainant, the accused has succeeded in rebutting the said presumption. The court below rightly acquitted the accused, submitted the counsel. 8. In the case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by the competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the order of acquittal recorded by the trial court. However, the Criminal Procedure Code put no limitation, restriction or condition on exercise of the power of the Appellate Court to review, re-appreciate and reconsider the evidence upon which the order of the acquittal is founded. But it is settled that if two reasonable conclusions are possible on the basis of evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down in Chandrappa were generally reiterated but mainly reformulated in Ganpat v. State of Haryana ( (2010) 12 SCC 59) though without reference to Chandrappa and by referring to decisions not considered therein. The reformulation of the principles in Ganpat is as follows: (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion. (ii) The appellate court can also review the trial court's conclusion with respect to both facts and law. (iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal. (iv) An order of acquittal is to be interfered with only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable , it is a compelling reason for interference. (v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate court is competent to reverse the decision of the trial court depending on the materials placed. In Rohtash v. State of Haryana, (2012) 6 SCC 589, it was held: 27. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 and Govindaraju v. State, (2012) 4 SCC 722) In Mookkiah v. State (2013 (1) KLT Suppl. 81 (SC)) the Supreme Court elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge and observed as under: An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court . In State of Rajasthan, the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed against him. Thus, though the execution of Ext. P1 cheque is disputed, his signature there in is not denied. However, during the evidence, the accused has specifically stated that the entries in Ext. P1 cheque were not in his handwriting. In order to prove the execution of the cheque, oral evidence of PW1 to PW3 were adduced. PW1 is the complainant himself. He reiterated the averments in the complaint in the box. However, in the chief affidavit, he did not mention the date of borrowal. In the complaint it was stated that the date of borrowal was on 08.07.2006. When a specific question was put to PW1 as to the date of borrowal in the cross examination, he answered that the date of borrowal was on 07.11.2006. He clarified the difference in the date of borrowal stated in the complaint and in the evidence. The clarification was that his advocate mistakenly shown the date as 08.07.2006 in the complaint and the correct date of borrowal was on 07.11.2006. But, it is pertinent to note that if such a mistake has occurred, it could have been clarified in the chief examination itself in as much as it was well within the knowledge of PW1. The said discrepancy in the evidence has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused adduced evidence to rebut the presumption. The dictum laid down in the above three decisions is that the cheque shall be presumed to be for consideration unless and until, the Court form a belief that the consideration does not exist or the non-existence of consideration was so probable that a prudent man would, under those circumstances of the case, act upon the plea that consideration does not exist. The learned counsel has also relied on a latest decision of Supreme Court in Bir Singh v. Mukesh Kumar [ (2019) 4 SCC 197] to hold that presumption under Section 139 of the N.I. Act is a presumption of law, as distinguished from presumption of facts. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is no quarrel about the above said legal proposition. But, this is a case where the accused has succeeded to bring on record such facts and circumstances, mentioned in detail above, to pursue the Court to believe that the consideration pleaded did not exist or that its non-existence was so probable th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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