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TMI Blog2021 (11) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent under Section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for one year and also pay fine of Rs. 7,00,000/- within ten days following which the accused/respondent was directed to suffer simple imprisonment for another one year. The genesis of the case related to a complaint under Section 138 of the N.I. Act filed by the appellant herein before the learned ACJM, Bolpur. The allegation made in the complaint were to the effect that the complainant/appellant advanced a loan of rupees seven lakh to the accused who after obtaining the same by representing his financial crisis and in discharge of repayment of the said loan issued a cheque bearing no. 732538 dated 06.06.2009 amounting to Rs. 7,00,000/- in favour of the complainant which was drawn at Vijaya Bank, Kankalitala Branch, Bolpur. The appellant presented the cheque for collection with the State Bank of India, Harinagar (HAN), Delhi (New Delhi) Branch but the same was dishonoured with the bank endorsement ―account closed . The bank return memo dated 10.06.2009 of the State Bank of India reflected such endorsement. On 06.07.2009 the complainant send demand notice to the accused by registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the accused "I put it to you that the instant cheque was issued upon a closed Account?". The very nature of the question which was advanced on behalf of the defence would go to show the issuance of the cheque was never disputed. PW2 is nephew of PW1 who has only corroborated the PW1 to the limited extent that he had knowledge that the accused had taken loan from the complainant and for repayment of the said loan a cheque of rupees seven lakhs was issued. The accused was examined under Section 313 of the Code of Criminal Procedure. The accused in his examination under Section 313 Cr.P.C. denied taking any loan and also claimed his innocence. Moreover, he denied having received any notice pursuant to the cheque being dishonoured. In support of his case the accused tendered one Debobrata Halder, a Clerk, attached to Vijaya Bank, Kankalitala Branch who produced the statement of accounts which was marked as Ext.A and the certified copy of the statement of accounts of Mondal Handicrafts belonging to the accused/respondent which was marked as Ext.B. The learned Magistrate after considering the evidence adduced on behalf of the prosecution as well as defence and on an appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablish principles of law. The learned advocate relied upon the following judgments: Dhanapal -Vs. - State by Public Prosecutor Madras, (2009) 10 SCC 401 [Para 39/41]; Vijay -Vs. - Laxman, (2013) 3 SCC 86 [Para 2/3/9/11/12/13/15/20 to 27]; Basaingappa - Vs. - Mudibasappa, (2019) 5 SCC 418 [Para 6/25/26/29 to 33]; Krishna Janardhan Bhat -Vs. - Dattaraya G. Hegde, (2008) 4 SCC 54 [Para 25/38/44]; Snajay Mishra -Vs. - Kanishka Kapoor @ Nikki, 2009 Cri L J 3777 (Bom) [Para 13]; Gherulal Parakh -Vs. - Mahadeodas Maiya & Ors, AIR 1959 SC 718 [Para 8 at pg 786]; Venkatesh Sadanand Pai -Vs. - Mrs. Kanchan A. Kakodhar & Anr.,2016 CR L J 1267 (Bom) [Para 11/12]; M/s Spring Fields Financial Services Ltd. -Vs. - State of AP & Anr., 2006 Cr. LJ 2090 (AP) [Para 18/23 to 27]; G. Pankajashi Amma & Ors. -Vs. - Mathai Mathew, (2004) 12 SCC 83 [Para 10] and R. Ramaraj -Vs. - R. Kuppusamy, 2012 (3) Madras Weekly Notes (Criminal) (DCC) 68 [Para 9/10/11]. In Dhanapal (supra) it has been observed in paragraph 21 that : "21. ...It is a well-settled legal position that when the view which has been taken by the trial court is a possible view, then the acquittal cannot be set aside by merely substituting i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Bhat may not be correct. In the same breath, the Hon'ble Supreme Court observed that the judgment of Krishna Janardhan Bhat was based on facts and circumstances of the said case. Further the judgment delivered by the Learned Judicial Magistrate reflects that the learned Magistrate took into account the statutory requirements so far as time period is concerned under the provisions of N.I. Act, the issue relating to service of notice and the legislative intent so far as the provisions of Section 138 to Section 142 of the N.I. Act are concerned. The Learned Magistrate was convinced that the complainant has been able to prove the issue of debt and liability which accrued and thereafter keeping in mind the purpose for which the provisions were enacted observed that Chapter XVII containing Sections 138 to 142 of the N.I. Act was introduced in the Banking, Public Financial Institution and Negotiable Instruments Law (Amendment) Act, 1988 (Act 66 of 1988) with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions and in order to promote efficacy of banking operations. According to the Learned Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque book being misplaced on transit on 20.05.2009. The third paragraph states that after closing the account, no cheques were issued and it has been denied that any monetary transaction was carried out. Fourth paragraph states regarding an apprehension that the cheque has been misused as the same was misplaced and lost in transit and the same is a ploy of harassing the accused/respondent. The learned Appellate Court, thereafter, relied upon the judgment of M.S Narayana Menon -Vs.- State of Kerala (2006) 6 SCC 39 and by resorting to Sections 118 and 139 of the N.I. Act was pleased to opine that the accused has been able to rebut the evidence which has been brought against him as the standard of proof by which the accused is required to dislodge the evidence is on the principle of preponderance of probabilities. The Learned Appellate Court after relying upon the judgment of Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in (2008) 4 SCC 54 was pleased to set aside the judgment and order of conviction and sentence passed by the Learned Magistrate and allowed the appeal. There is a distinction between interference in cases of acquittal in other offences and those under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused." In this case the Learned Appellate Court acted on a letter of the Advocate and interfered with the order of conviction passed by the Learned Trial Court. On the face of it, the Learned Appellate Court unnecessarily gave importance to a G.D. Entry number which was reflected in the notice although the original G.D. Entry was never brought on record. The Appellate Court's finding on the subject so far as the issue of debt or liability is concerned are not on accepted principles of law so far as the provisions of Negotiable Instruments Act is concerned. The Appellate Court should have been cautious as a belated plea taken by an accused cannot be given undue importance in cases where presumption under Section 118 and 139 of the Negotiable Instruments Act exist. The manner in which the learned Appellate Court set aside the order of the learned Magistrate calls for interference of this court as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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