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TMI Blog2014 (6) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant to prove his case beyond reasonable doubt. There are no hesitation to hold that the Trial Court has committed a serious error in appreciating the legal aspects and as well as the factual aspects as detailed above, and came to a wrong conclusion. No Court can come to such conclusion on the basis of above said materials on record. The findings recorded by this Court are based on the evidence on record. The Trial Court even not taken any pains to appreciate the evidence on record in detail to arrive at a proper conclusion - the Trial Court has committed a serious error in acquitting the accused even though sufficient materials are available on record in favour of the complainant and that the accused has not proved his defence by probabilities. The judgment of acquittal recorded by the Trial Court is hereby set aside - Appeal allowed - decided in favor of appellant. - Criminal Appeal No. 2689/2009 - - - Dated:- 2-6-2014 - K.N. Phaneendra, J. For Appellant: Sri. J.S. Shetty, Adv. For Respondents: Sri. V.C. Madanalli, Adv. JUDGMENT K.N. Phaneendra, J. 1. The present appeal is preferred against the Judgment passed by the Principal J.M.F.C., Honna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent strenuously contended that the accused in fact has admitted that he had previously issued a cheque for ₹ 50,000/- and the said cheque was not presented. He has also entered into further transaction and the further transaction has been completely cleared by the accused by making the payment to the complainant. He further contends that the accused has specifically stated in his evidence that, the cheque was forged one and therefore, it becomes the burden on the part of the complainant to establish that the said cheque was issued by the accused by referring the cheque to the expert in order to prove the signature on the cheque by the accused. When the complainant has not done that the complainant has failed in his case and accordingly, the Trial Court has rightly recorded reasons for acquittal. He further contends that the complainant has not produced any iota of evidence to show that he has such money with him to advance any loan to the accused. He has not produced any income tax returns in order to show that he has money transaction with the accused. Therefore, culminating all the above said circumstances, the Trial Court has rightly acquitted the accused an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnavara Town Co-Operative Bank, Honnavara Branch dated 15.07.2005 and the same was bounced on the shara that the account was closed and the said cheque was returned on 21.07.2005. The complainant has issued a notice on 28.07.2005 but the said notice though served on the accused he has not replied nor he has paid any amount. Therefore, the complaint came to be lodged. The defence has not been disclosed by the accused by means of issuing any reply notice. The parties in fact went on for trial and both have led the evidence. In fact, the complainant has examined himself as PW-1 and accused examined himself as DW-1 and also examined two witnesses DWs 2 and 3. The complainant has got marked 8 documents Ex. P1 to P8 and accused also produced 3 documents Ex. D1 to D3. The accused was also examined under Section 313 of Cr.P.C. The Trial Court after analysing the evidence, recorded the judgment of acquittal. 11. It is seen from the records that during the course of examination in chief the complainant has reiterated the averments made in the complaint, has categorically stated the issuance of cheque for ₹ 45,000/- in No. 005342 and the bouncing of the said cheque for closing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and he has discharged the said loan in its entirety. When actually he has taken the said loan, how much amount, when he discharged the said loan has not been categorically and specifically stated in the examination-in-chief itself. The next sentence, in my opinion, clears all the doubts, that the accused has stated that, when the complainant has issued the notice immediately he has discharged the entire amount. That means to say, after issuance of the notice after the disputed cheque was bounced for ₹ 45,000/- it should be understood that the accused discharged the said loan. The question is whether, this discharge of the loan is properly established before the Court atleast by means of preponderance of possibility has to be looked into by the Court. It is stated by accused that when he has received the notice on 05.08.2005 he told the complainant that transaction between himself and the complainant was already completed. Therefore, he deposed that he has not issued any reply to the complainant's notice. This aspect clears out the doubt that, only after the issuance of the notice i.e. after bouncing of the cheque issued by the accused according to accused he has dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt could know that it is forged cheque issued when it is the specific case of the complainant that the said cheque was issued by the accused himself not by any other person. In the course of cross-examination, a new case attempted to be made out by the accused. He has stated that he has only taken an amount of ₹ 37,000/- from the complainant and he has returned the same by issuing three cheques for ₹ 10,000/- each and also paying ₹ 10,000/- by cash to the complainant. It is also admitted that even after discharging his loan earlier he has made further transaction with the complainant and he discharged the said loan also. The above evidence in facts supports the case of the complainant. Even admitting for a moment that the previous transaction under the earlier cheque for ₹ 50,000/- has been discharged by the accused. But according to his own admission he has made further transaction, perhaps that may be the reason he has issued a cheque for ₹ 45,000/-. 14. In this background, the case of the complainant that after issuance of the first cheque for ₹ 50,000/- when notice was issued to the accused, the accused has paid an amount of ₹ 5,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused has failed to establish that his case is proved by means of preponderance of possibility that is to say, probabilities placed by the accused have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt. 16. Under the above said circumstances, I have absolutely no hesitation to hold that the Trial Court has committed a serious error in appreciating the legal aspects and as well as the factual aspects as detailed above, and came to a wrong conclusion. No Court can come to such conclusion on the basis of above said materials on record. The findings recorded by this Court are based on the evidence on record. The Trial Court even not taken any pains to appreciate the evidence on record in detail to arrive at a proper conclusion. 17. Under the above said circumstances, I am of the opinion, the Trial Court has committed a serious error in acquitting the accused even though sufficient mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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