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TMI Blog2021 (12) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 had availed Rs. 10,57,190/- from the complainant and was legal due to the complainant. On demanding such money, the respondent No. 1 issued a cheque bearing No. 404385 dated 16.05.2003, drawn on the Union Bank of India, Dhanlaxmi Market, Revdi Bazaar, Ahmedabad for Rs. 10,57,190/- and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 16.05.2003, the complainant deposited the cheque in the Nagrik Sahakari Bank, Maskati Market, the same was returned by the bank with an endorsement "Account Closed". Accordingly, the complainant issued a legal notice dated 22.05.2003 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act"), which was served upon the respondent No. 1 on 28.05.2003. Since the respondent No. 1 neither replied to the said notice nor paid the cheque amount, the complainant constrained to file the complaint under Section 138 of the NI Act before the learned Metropolitan Magistrate Court, Ahmedabad. 2.1. Upon such complaint being filed and subsequent service of summons upon the respondent No. 1, he appeared before the Court. Since the accused did not plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the cheque. It is submitted that if the said fact is accepted, then the proof of legality of the cheque runs concurrently with the fact of legal debt. In his submission, the learned Magistrate ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him under Sections 118(a) and 139 of the NI Act. 3.2. The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt, however, the learned Magistrate has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. 3.3. In support, the learned advocate for the appellant has relied upon following decisions: 1) Laxmi Dyechem v. State of Gujarat and Others,: (2012) 13 SCC 375; 2) Uttam Ram v. Devinder Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the complainant has failed to prove the "legally enforceable debt" and has rightly applied the decision of the Apex Court in M.S. Narayana Menon (supra). It is also submitted that the bank account had already been closed and that, the handwriting on the cheque in question was also not of the respondent No. 1 and in the circumstances, the learned Magistrate has rightly disbelieved the case of the complainant. It was also submitted that the complainant has also failed to prove or produce any documentary evidence as regard he was having licence to provide services related to financing. 4.4. The learned advocate for the respondent No. 1-accused further submitted that the learned Magistrate has rightly acquitted the accused as the complainant failed to bring home the charge against the accused. Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be dismissed. 4.5. In support, the learned advocate for the respondent No. 1 has relied upon following decisions: 1) Krishna Janardhan Bhat v. Dattaraya G. Hegde, passed by the Apex Court in Appeal (Cri.) 518 of 2006 on 11.01.2008; 2) Anil s/o. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 5.3. In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court". 5.4. Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, the Apex Court has observed as under: "9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala: (1998) 5 SCC 412, Bhagwan Singh v. State of M.P. (2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka: (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of 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 his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." 9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: "20. The findings of fact recorded by a court can be held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case." 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to one year. Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate the claim of the complainant that the debt was legally enforceable debt for want of any material to substantiate the same and therefore, in the overall facts and circumstances of the case, the learned Magistrate has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt and in view of the aforesaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Magistrate. 6.2. So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, (2019) 5 SCC 418, wherein, the Court has observed as under: "23. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 23.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 23.2. The pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion and in the considered opinion of this Court, the learned Magistrate has rightly come to such a conclusion, which do not call for any interference at the hands of this Court. 7. If the decisions relied upon by the learned advocate for the appellant-original complainant are referred to, in Laxmi Dyechem (supra), the Court has held that, "Two contingencies required to constitute offence under Section 138. First contingency "either because of the amount of money standing to the credit of that account is insufficient to honour the cheque", held, is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer", "signatures do not match" or "image is not found", are only species of that genus. It is further held that, "Two contingencies envisaged under Section 138 cannot be interpreted strictly or literally. So long as the change is brought about by a drawer of the cheque with a view to preventing the cheque from being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied". In the case on hand, firstly, as discussed earlier, the debt is not proved to be the legally enforceab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, as emerges from the record, more particularly, from the document at Exh. 12, which is the copy of bank statement, the bank account of the respondent No. 1 was already closed in February 2003, to be precise on 28.02.2003 only. Indisputably, the complainant has deposited the cheque in question on 16.05.2003, which was dishonoured with an endorsement "Account Closed". Thus, the respondent No. 1 appears to have rebutted the presumption under the provisions of Section 139 of the NI Act besides the fact that, the debt is not proved to be the legally enforceable debt. Thus, the aforesaid decision also, would be of no help to the complainant. 7.3. In NEPC Micon Ltd. and Others (supra), the Court has held that, "The return of a cheque by the bank unpaid on the ground that the "account is closed" would mean that the cheque is returned as unpaid on the ground that "the amount of money standing to the credit of that account is insufficient to honour the cheque". The reason is that the cheque was dishonoured as the amount of money standing to the credit of "that account" was "nil" at the relevant time apart from it being closed. The closure of the account would be an eventuality after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt deems it proper not to burden the judgment by referring all those decisions, however, if the decision in Krishna Janardhan Bhat (supra), is referred to, it is observed by the Apex Court that, "The proviso appended to the said section provides for compliance of 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 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". Thus, the presumption under Section 139 of the NI Act 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 and existence of legally recoverable debt is not matter of presumption under the said section. Thus, in the case on hand the learned Magistrate has rightly concluded that the dues were not legally recoverable dues. 9. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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