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TMI Blog2022 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... ths. The respondent did not return the money. When the appellant made repeated requests, on 20.11.2013, according to the appellant, the respondent gave him two cheques of Rs. 3 Lakh and Rs. 1 Lakh each. The cheques, when presented, were dishonoured. Thereafter, the appellant gave a notice on 02.12.2013 to the respondent, but the respondent did not pay the money. Hence, the complaint. 3. After conducting inquiry in the case, cognizance was taken under Section 138 of the Act on 11.08.2017. The accusation was stated to the respondent. At this stage, the respondent replied that he had returned the money to the appellant. He admitted to have given the cheques to the appellant. 4. In his examination-in-chief, the appellant filed an affidavit. He was cross examined on 08.09.2014. The respondent was examined under Section 313 of the Code on 14.12.2017. At this stage, the respondent admitted to have given two cheques to the appellant of Rs. 3 Lakh and Rs. 1 Lakh each. It is the case of the respondent that thereafter, the appellant told it to him that the cheques had been lost. Therefore, the respondent gave Rs. 1.5 Lakh, in cash to the appellant and also gave two cheques of Rs. 1.5 Lakh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 9. It is settled law that if two views are possible, the court in appeal should be slow to substitute the view recorded by the trial court. In the case of two possible views, the court leans towards the view which favours the accused. 10. Learned counsel for the appellant at this stage would submit that the court, in appeal against acquittal, may reverse the finding of acquittal and record conviction. In support of his contention, learned court placed reliance on the principle of law, as laid down in the case of Guru Dutt Pathak Vs. State of Uttar Pradesh, (2021) 6 SCC 116. 11. In the case of Guru Dutt Pathak (supra), the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC 445 : (2010) 1 SCC (Cri) 1496] ) 13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] , the Privy Council observed as under : (SCC OnLine PC : IA p. 404) '... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.' 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State [Tulsiram Kanu v. State, AIR 1954 SC 1 : 1954 Cri LJ 225] , Balbir Singh v. State of Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 17. In State of Rajasthan v. Naresh [State of Rajasthan v. Naresh, (2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069] , the Court again examined the earlier judgments of this Court and laid down that : (SCC p. 374, para 20) '20. ... An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused." 18. In State of U.P. v. Banne [State of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include : (Banne case [State of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed post at his correct address, therefore, it shall be presumed that notice had already been served on him. The appellant had filed receipt of the Postal Department, by which, the registered post was sent to the respondent. Information received from the postal department under the Right To Information Act, 2005 reveals that the envelope was delivered at the given address. (vi) The respondent did not reply to the notice given to him by the appellant. (vii) Section 139 of the Act, provides that in such a situation, presumption shall be made in favour of its holder and it has not been rebutted by the respondent. 15. Learned senior counsel would submit that the entries in the Bank record, which have been relied upon by the court below, pertain to 20.05.2010 and 16.01.2012. It is argued that if on that dates, any money was deposited in the account of the appellant, it may not be construed as discharge of the loan, which was taken by the respondent in the year 2013, because the loan taken in the year 2013, could not have been repaid sometimes in the year 2010 and 2012. It is argued that the finding with regard to the handwritings, on the cheques, has no force of evidence because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court, interpreted the provisions of Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872 and observed as hereunder:- "13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stand complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption." 20. In the instant case, the postal receipt has been filed by the appellant and information received under the Right to Information Act, 2005 has also been filed by the appellant relating to postal receipts, by which the Postal Department had informed that the item had been delivered on the respondent. In his affidavit given in the examination-in-chief, the appellant has deposed about these facts. It categorically establishes that, in fact, service had been sufficient on the respondent. There is no doubt about it. 21. On behalf of the respondent, reference has been made to explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r liability" as used in Section 138 of the Act and according to it, the "debts and other liability" means legally enforceable debts or other liability. Even if particular date, time and place is not mentioned in the complaint or at any place, it does not mean that the respondent was not under any debt or legally enforceable liability. Even otherwise, Section 139 of the Act makes presumption in such a situation, which is as hereunder:- "139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 24. The appellant is holder of the cheques. In view of the presumption under Section 139 of the Act, also it shall be presumed that he received the cheques for the discharge of debt. This Court will further discuss as to whether contrary to it has been proved, as held in the impugned judgment. But, before that the Court deals with the issued with regard to the handwritings on the cheques. 25. An argument has been advanced on behalf of the respondent that according to the statement of appellant, bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh from him and to repay it, he had given two cheques to the appellant. The cheques were dishonoured. Notice was given, which was duly served on the rerspondent, but he did not pay the amount. The accused ever did not pay the amount post issuance of the cheques. 31. In view thereof, the Court is of the view that the appellant has been able to prove the offence under Section 138 of the Act against the respondent. The court below recorded the finding of acquittal, which is not in accordance with law. Therefore, the impugned judgment and order deserves to be set aside and respondent is liable to be convicted under Section 138 of the Act. 32. The question of sentence has also comes up for consideration. The Court heard learned counsel for the parties on the question of sentence also. 33. Learned counsel for the respondent would submit that it is appeal against acquittal. The complaint and the accused both were friends. Admittedly, as per the appellant also they were Contractors. The punishment under Section 138 of the Act may extend up to the term of two years with a fine of double the amount of cheque or with both. 34. In fact, this matter was finally heard on 28.10.2021. When the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the High Court may have indeed been justified in setting aside the sentence of imprisonment awarded to the appellant in the facts and circumstances of the case. We say so having regard to a three-Judge Bench decision of this Court in Damodar S. Prabhu v. Sayed Babalal H. [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] where this Court briefly examined the object sought to be achieved by the provisions of Section 138 and the purpose underlying the punishment provided therein. This Court has held that unlike other crimes, punishment in Section 138 cases is meant more to ensure payment of money rather than to seek retribution. The Court said : (SCC p. 670, para 17) "17. Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused, the contumacy of his conduct, the period for which the prosecution goes on, the amount of the cheque involved, the social strata to which the parties belong, so on and so forth. Some of these factors may indeed make out a case where the court may impose only a sentence of fine upon the defaulting drawer of the cheque. There is for that purpose considerable discretion vested in the court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. Inasmuch as the High Court did so, it committed no jurisdictional error. In the absence of a challenge to the order passed by the High Court deleting the sentence of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage. 16. Coming then to the question whether the additional amount which the High Court has directed the appellant to pay could be levied in lieu of the sentence of imprisonment, we must keep two significant aspects in view. First and foremost is the fact that the power to lev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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