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TMI Blog2021 (8) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... error in acquitting the accused? - HELD THAT:- On perusal of both oral and documentary evidence available on record, it is the specific case of the complainant that he had lent money to the accused on 15.10.2006 and in order to repay the said loan the accused had issued a cheque on 25.01.2007. When the cheque was presented it was dishonoured with a shara insufficient funds . The complainant has relied upon document Ex.P1-cheque. The accused did not dispute his signature available on Ex.P1. The complainant also relied upon Ex.P3-legal notice and the said notice was sent to the residential address of the accused Kurubarahalli and also to his driving school - The accused has to lead plausible evidence before the Court and this Court has taken note of the evidence of DW1 that his evidence cannot be believed and the same is not trustworthy and he makes an attempt to give evading answer in the cross-examination in respect of other two cases filed against him for cheque bouncing. Though he denies, he admits that two cases are filed against him in the cross-examination and hence his evidence is not credible. The statutory presumption available is in favour of the complainant. The oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the conviction of the Trial Court. 2. The factual matrix of the case is that the complainant and the accused are friends. The accused had requested the complainant to lend hand loan of ₹ 70,000/- to meet his urgent financial necessity on first week of October, 2006. The complainant gave an amount of Rs,64,000/- on 15.10.2006 and the accused had promised to repay the said loan within three months but the accused did not repay the same. However, on repeated requests, the accused issued a self cheque dated 21.01.2007 and when the same was presented, it was dishonoured. The complainant got issued legal notice both to his residential address as well as his office address. That in spite of receiving the notice sent under certificate of posting, the accused did not give any reply and hence the complainant was forced to file complaint. The complainant in order to substantiate his contention he himself examined as PW1 and got marked document Exs.P1 to P8. The trial Court, after recording the evidence of the complainant examined the accused under Section 313 of Cr.P.C. The accused also examined himself as DW1 and got marked Ex.D1. The trial Judge, after considering both oral and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t while acquitting the accused has come to a conclusion that the complainant has not obtained any documents while lending money. The fact that both are friends is not disputed. The defense, of the accused is that the cheque kept in the driving school was stolen and to that effect no probable evidence is available to believe the defence of the accused. Learned counsel would also submit that the judgment of the Apex Court in the case of RANGAPPA v. MOHAN reported in AIR 2010 SC 1898 is aptly applicable to the case on hand in order to draw presumption that the accused has not disputed his signature on the cheque and also no reply was given to the legal notice. Though the accused has been examined, the statutory presumption under Section 139 of the NI Act has not been rebutted by the accused and also the admission on the part of DW1 has not been considered by the appellate Court in a perspective manner. It is contended that the appellate Court has committed a fundamental error in not considering the presumption and also held that the complainant was not having any source to lend money in favour of the accused is erroneous and hence, it requires interference by this Court. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court paragraph No.17 of the Judgment, wherein, the Apex Court discussed with regard to Section 378 of Cr.P.C. The matter was reached to the Apex Court in connection with an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence, wherein, observed the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Session. 9. With regard to the merits of the case, the learned counsel would contend that it is the case of the complainant before the Magistrate that the loan transaction was taken place on 15.10.2006 and he has not mentioned anything about the capacity to lend the amount and he ought to have demonstrated before the Court regarding his capacity. Ex.P1 is not in the handwriting of the accused and the same has not been explained either in the complaint or in his evidence. The learned counsel also would submit that under Section 269SS of the Income Tax Act, if it is more than ₹ 20,000/-, the same is payable by way of cheque and not by cash transaction. The First Appellate Court has applied its mind and given the sound reasoning for acquittal and hence, the same cannot be interfered with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of acquittal. The learned counsel would vehemently contend that at the most revision lies and not an appeal and it amounts to a second appeal and the remedy is only to invoke Section 397 or Section 401 of Cr.P.C. The learned counsel also would vehemently contend that the Sessions Court already exercised the powers of the First Appellate Court. Hence, this Court cannot exercise the powers of Appellate Court and the learned counsel for the appellant would submit that the appeal lies not the revision as contended. 14. In keeping this contention, this Court has to extract the very proviso of Section 378, which has been invoked by the appellant. Section 378 of Cr.P.C., reads as follows:- 378. Appeal in case of acquittal (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),- (a) the District magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force. 17. Having read the above provisions conjointly particularly Section 386, it is clear that, in an appeal from a conviction - reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial. In the case on hand also powers are vested with the First Appellate Court under Section 386(b) or alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. The powers are vested with the Appellate Court to re-appreciate the material on record. 18. Having perused Section 372 of Cr.P.C., - No appeal to lie unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. There is a proviso that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present an appeal to the High Court. The proviso of Section (4) is very clear regarding an order of acquittal passed in any case instituted upon the complaint prefer an appeal with special leave to appeal from the order of acquittal and the present appeal is filed. 23. Having perused the proviso of Section 401 particularly, sub-clause (4), it is very clear that, where under this Code an appeal lie and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 24. On reading of proviso of Section 401, there is a clear bar, where an appeal lies under the code and no appeal is brought, no proceedings by way of revision shall be entertained. Hence, the very contention of the learned counsel for the respondent that the revision lies and it amounts to a second appeal cannot be accepted. It has to be noted that the Trial Court in the case on hand convicted the accused and the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378(2), 378(3) and 378(4) of Code of Criminal Procedure, 1973 and so also Doctrine of Stare Decisis. The judgment passed by Hon'ble Justice Jawad Rahim in Criminal Appeal No.142/2009 is not accepted and held that appeal is maintainable while coming to such conclusion also considered the judgment of this Court in Chairman, Village Panchayath vs. Thimmasetty reported in AIR 1956 Mys 62 with reference to Section 417 of Cr.P.C., 1898 which correspond to Section 378 of Cr.P.C., 1973 has held that, the complainant with the leave has right of appeal to the High Court against the order of acquittal passed by the Sessions Court in Appeal against the order of conviction passed by Magistrate. The said judgment is also considered by the Gujarat High Court in Mohammadmiya Kalumiya vs. Majidkhan Dildarkhan and Another reported in 1972 Crl.L.J. 1409. 26. Having discussed in detail, the Division Bench comes to the conclusion that High Court or the Sessions Court in the revisional jurisdiction will not have a right to convert an order of acquittal into a conviction and Division Bench in agreement with the view taken by Hon'ble Justice Arali Nagaraj and not accepted the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the counsel relied upon the judgment of the Apex Court in Rangappa s case (supra). 29. Now, this Court has to re-appreciate the material available on record, since divergent findings were given by the Trial Court as well as the First Appellate Court. The main contention of the learned counsel for the respondent is that First Appellate Court has rightly re-appreciated both oral and documentary evidence placed on record. The complainant before the Trial Court would contend that this is a transaction of hand loan and in the complaint or in his evidence, the accused did not mention or demonstrate that he is having capacity to lend loan. It is elicited that, Ex.P1-cheque is not in his handwriting and the same has not been explained by the complainant either in his complaint or in his evidence. The learned counsel for the respondent would also submit that, there is a bar under Section 269-SS of Income Tax Act, 1961 to make payment in cash and the amount has to be paid only by cheque. The said aspect has been considered in detail by the First Appellate Court applying its mind and has come to the right conclusion. 30. Having considered the respective contentions of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to prove his case, examined himself as DW1 by filing an affidavit in lieu of chief examination. He has reiterated in his defence that he used to keep blank signed cheques in his driving school and the complainant had stolen the said cheque and filed a false case. DW1 was subjected to cross-examination. In the cross-examination, it is elicited that he is a B.Com graduate. He was residing earlier at Kurubarahalli and now he is residing at Hosakote Town from last two years. He admits that he was running Sai Vidya Driving School at Hosakote, located in Jayashree Hospital building, Old Madras road, Hosakote Town. He admits that he only gave instructions to his counsel to prepare his chief evidence and also admits that in the said affidavit he has sworn to that he is a resident of Kurubarahalli. He also admits that he was running crackers chit and also admits that he was running the same for a period of two years. He admits that he had acquaintance with the accused from 2004 and also says both of them had opened joint account in the year 2004 but they had not obtained any cheque book except pass book-Ex.D1. He also admits that in the chief evidence he sworn to that a joint account w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umentary evidence available on record, it is the specific case of the complainant that he had lent money to the accused on 15.10.2006 and in order to repay the said loan the accused had issued a cheque on 25.01.2007. When the cheque was presented it was dishonoured with a shara insufficient funds . The complainant has relied upon document Ex.P1-cheque. The accused did not dispute his signature available on Ex.P1. The complainant also relied upon Ex.P3-legal notice and the said notice was sent to the residential address of the accused Kurubarahalli and also to his driving school. The complainant relied upon Ex.P4-certificate of posting, RPAD and postal receipt. Exs.P7 and P8 are the registered postal cover in respect of his residential address and also the driving school address. 34. It is pertinent to note that when a notice was sent under UCP as well as registered post, an endorsement at Ex.P7 discloses that the post man had visited for seven days to his residential address and the accused was not found, hence returned the same. In the cross-examination, DW1 categorically admits that the address mentioned in Ex.P7 is correct and so also the address mentioned in Ex.P8 is in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to substantiate the same, the defence of the accused is that the complainant had stolen the cheque but to that effect nothing is elicited. No doubt, it is elicited that both are friends and PW1 was also working as agent in respect of the crackers chit. 36. It is also relevant to note that, in the cross-examination of DW1 regarding transaction is concerned, it is suggested that DW1 used to keep five blank cheques signed since he used to visit RTO office often for his driving school purpose. He admits that he has not given any complaint to police and also did not intimate the bank as he did not know about stealing of the cheque. But, he gave an explanation that he came to know only after received summons from the Court and on the advice of the advocate not given any complaint. It is important to note that DW.1 categorically admitted that he is a B.Com., graduate and what made him to keep 5 signed cheques, is not explained. 37. Having perused the evidence of DW1, a suggestion was made to the accused whether he had faced several cases on account of dishonour of cheque in respect of one Malleshaiah but he admits that the said Malleshaiah has filed a false case against him. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that cheque is given and hence the said document itself supports the case of the complainant. The accused has to explain how the cheque has gone to the hands of the complainant. No doubt, a defence was raised that the complainant had stolen the cheque and it has to be noted that PW1 has categorically denied the said defence and no explanation is given before the Court why he used to keep five blank cheques signed. No doubt, he was running a driving school; that does not mean that he used to keep signed blank cheques that too, 5 cheques and he has not assigned any reasons to whom he has handed over the said cheques. The evidence adduced by the accused with regard to stolen of cheque in his driving school cannot be believed. 39. The accused has to lead plausible evidence before the Court and this Court has taken note of the evidence of DW1 that his evidence cannot be believed and the same is not trustworthy and he makes an attempt to give evading answer in the cross-examination in respect of other two cases filed against him for cheque bouncing. Though he denies, he admits that two cases are filed against him in the cross-examination and hence his evidence is not credible. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the trial Court without drawing presumption available in favour of the complainant. Therefore, nothing inspires this Court that the evidence led by the accused amounts to rebutting the evidence of the complainant. 41. This Court, in the judgment in M/s. National Agricultural Co-op. Marketing Federation of India Ltd. (NAFED), rep., by its Bengaluru Branch Manager vs. M/s. Disha Impex (Pvt.) Ltd., New Delhi and Another reported in ILR 2021 KAR 1184 held that, when once the issuance of cheque has been admitted, the presumption has to be drawn in favour of the complainant under Section 139 of N.I. Act. It is also observed that, it is settled law that the presumption under the N.I. Act is rebuttable presumption and the Court has to look into the evidence available on record whether the accused has rebutted the evidence of complainant. If the complainant is able to draw the presumption at the first instance, the burden shifts on the accused with regard to rebutting the evidence of the complainant. In this case, though the accused himself has been examined as D.W.1 and the evidence of the complainant has not been rebutted either by way of effective cross-examination or by leading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook lost /stolen or that cheque was misused was completely without basis and the Appellate Court reversed the acquittal and further held that, accused to pay twice of the amount of cheque as fine and costs of litigation of ₹ 1,00,000/- within three months, and if the amounts are not paid in time, to undergo imprisonment for six months. 45. The Apex Court, in the judgment in Rohitbhai Jivanlal Patel vs. State of Gujarat and Anr. reported in AIR 2019 SC 1876 invoking the ingredients of Sections 138, 118 and 139 held that presumption in favour of the holder is apparent on the face of record. Therefore, it is required to be presumed that cheques in question were drawn for consideration and complainant received it in discharge of an existing debt and onus is shifted on accused, unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused. The failure of accused to show reasonable probability of existence of transaction with his friend, evidence of friend not supporting his case and accused not denied his signature ..... X X X X Extracts X X X X X X X X Extracts X X X X
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