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TMI Blog2021 (12) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... only to the Panaji bus stand but also to other bus stands where respondent no. 1 had been engaged for collection of bus stand fees and parking fees. On this basis, the Magistrate found that the extent of dues and/or liability was not clear and that amounts stated in the cheques were far more than the debt or liability as projected by the appellant, thereby justifying the acquittal of respondent no. 1. There can be no doubt that under Section 139 of the aforesaid Act, a presumption operates in favour of the appellant and against the respondent no. 1 (accused). But, the presumption arises when foundational facts are proved by the complainant i.e. appellant in the present case. The documentary material on record was used on behalf of the respondent no. 1 to confront the witnesses in cross examination, which brought on record material that effectively rebutted the presumption that could have operated in favour of the appellant under Section 139 of the aforesaid Act. The appellant while challenging an order of acquittal has to pass a stringent test to successfully demonstrate that the order of acquittal deserves to be reversed. Appeal dismissed - decided against appellant. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to clearly demonstrate that the respondent no. 1 deserved to be convicted under Section 138 of the Act. 6. By referring to oral evidence of the witnesses who were examined on behalf of the appellant and the documents brought on record before the Magistrate, learned counsel for the appellant contended that clinching evidence was available to show the guilt of respondent no. 1 and yet the Magistrate had erroneously acquitted him. By specifically referring to letters submitted by the respondent no. 1 in response to notices and communications issued by the appellant, learned counsel for the appellant submitted that the respondent no. 1 had admitted his liability and that therefore, he could not have been acquitted. The learned counsel for the appellant submitted that judgments of the Hon'ble Supreme Court and this Court demonstrated that when sufficient material was placed on record for demonstrating liability on the part of the accused and presumption under Section 139 of the Act arose because signature and issuance of cheques was not denied, an order of conviction ought to have followed in the present case. Reliance was placed on the judgments of the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumentary evidence placed on record before the Magistrate. It is settled law that when an appeal against acquittal is being considered, the appellate Court shall not reverse the order of acquittal only because another view in the matter was possible on the basis of the material on record, when the view adopted by the Court below while acquitting the accused was a reasonable and possible view. Therefore, the test to be satisfied by the appellant while seeking reversal of the order of acquittal is a stringent test and the material on record will have to be appreciated in that context. 9. In the present case, the Magistrate has acquitted the respondent no. 1 on the basis that the complaint filed by the appellant for dishonour of the three cheques pertained only to the alleged liability towards bus stand fees for the Panaji bus stand. The Magistrate found that the oral and documentary evidence placed on record by the appellant pertained not only to the Panaji bus stand but also to other bus stands where respondent no. 1 had been engaged for collection of bus stand fees and parking fees. On this basis, the Magistrate found that the extent of dues and/or liability was not clear and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 17.12.2009, prepared by the Assistant Financial Controller of the appellant, the outstanding dues towards Panaji bus stand were ₹ 1,82,514/-. It is also significant that a document at Exh. 66-C before the Magistrate signed by the Deputy Financial Controller of the appellant stated that the outstanding dues against the respondent no. 1 pertaining to Panaji bus stand, as on 3.8.2008 were ₹ 94,011/-. 14. It is necessary to now peruse the contents of the complaint dated 26.11.2009, filed by the appellant before the Magistrate under Section 138 of the aforesaid Act. Paragraph 2 of the complaint specifically states that the three cheques in question were issued in favour of the appellant for collection of bus stand fees pertaining to Panaji bus stand. There is no reference to the amounts due in connection with the other bus stands in the State of Goa, in respect of which the respondent no. 1 was awarded the contract. Thus, as per the stated case of the appellant itself in the complaint filed before the Magistrate, the three dishonoured cheques pertained to legal debt or liability, only in respect of bus stand fees of Panaji bus stand. 15. The witnesses who were exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eques. It is significant that the said amount, according to the said witness for the appellant, was due as on 30.6.2012. If the amounts mentioned in the cheques were in the context of the Panaji bus stand when the cheques were issued, subsequently i.e. by 30.6.2012, the dues would certainly have become much higher. The dues could never have been less than the total amount of the cheques issued. This clearly shows, that there was absence of material on record to support the stated case of the appellant in the complaint that the amounts of dishonoured cheques pertained to legal debt or liability in the form of bus stand fees pertaining to Panaji bus stand. 18. The appellant cannot be heard to say that there were outstanding dues against the respondent no. 1 pertaining to other bus stands in the State of Goa for which contract of bus stand fees and parking fees was awarded to the respondent no. 1 and that the cheques in question could be examined in the context of alleged dues pertaining to other bus stands also. This is because the complaint in the present case specifically pertains to alleged outstanding dues from the respondent no. 1 in the context of bus stand fees of the Panaj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheques in question pertained to such amounts which could be held to be legal debt or liability. 22. In the case of Laxmikant D. Naik Karmali vs. Santosh V. Naik (supra) also, this Court found that a specific claim was raised on behalf of the complainant as regards the amount due from the accused and when the cheque was found to be for an amount more than the amount due, no case was made out under Section 138 of the aforesaid Act. The said judgment was followed by this Court in the case of M/s. Enpee Earthmovers Vs. M/s. Resources International and ors.,(supra) and in the case of Karekar Finance Pvt. Ltd. Vs. Shri M.N. Bashyam, (supra). In the said case, it was found that the statement produced by the complainant itself did not demonstrate that the accused owed the specific amount in respect of which the cheque in question was allegedly issued. The aforesaid judgment and the law laid down therein clearly support the case of respondent no. 1. 23. In so far as the judgments relied upon by the learned counsel for the appellant are concerned, the case of Uttam Ram Vs. Devinder Singh Hudan and another (supra), wherein the Hon'ble Supreme Court held in favour of the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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