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TMI Blog2022 (5) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... he special reasons. The Criminal Appeal being devoid of merits is dismissed. - R/Criminal Appeal No. 1362 of 2015 - - - Dated:- 28-4-2022 - HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN For the Appellant : Hardik P. Barot For the Respondents : Neeraj Soni and R.C. Kodekar, APP JUDGMENT 1. This Appeal is filed by the appellant under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 13.08.2015 passed by the learned 7th Judicial Magistrate, First Class, Kalol in Criminal Case No. 2272 of 2014, acquitting the private respondent No. 2-original accused from the offence punishable under sections 138 of Negotiable Instrument Act. 2. The brief facts of the prosecution case is that the respondent No. 2 came upfront before the appellant to sell his house and the deal was made for 4,00,000/- The appellant lend the below amount by cheques. 1st cheque was issued on 9/3/2013 for Rs. 80,000/- 2nd cheque was issued on 19/3/2013 for Rs. 80,000/- and 3rd cheque was issued on 26/7/2013 for Rs. 28,000/- and the rest of the amount of Rs. 2,25,000/- was given in cash to hand by the appellant to the respondent No. 2. In return the appellant aske ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is presumed, the contents of notice and story are rightly proved. 3.4. Mr. Harik Barot, learned advocate for the appellant has submitted that Appellant's source of income clean and clear being SBI bank officer and not required to produce his income documents, however, application made before the court for submitting appellants income-tax documents and bank statements and those were referred in the trial and given mark but they were not exhibited as the Hon'ble court instructed to give them exhibit at the time of final arguments and henceforth, remained as mark till the end of the trial. As a matter of fact, in reference to the above aspect, the appellant does not requires to submit any such evidence pertaining to his income as he himself is a Bank Officer in nationalized bank of SBI. 3.5. Mr. Harik Barot, learned advocate for the appellant has submitted that Rs. 1,25,000/- given through cheque proves the case of the appellant by default to make the remaining nexus of Rs. 2,75,000/-. 3.6. Mr. Harik Barot, learned advocate for the appellant has submitted that Accused has taken simple denial with an excuse that the cheque is misused and the said story not proved an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the offence under section 138 of N.I. Act contention was raised by accused that blank cheque was given by way of security is misused by complainant and considering on facts that facts taken by accused is absent in his reply to notice, the Hon'ble Court rejected the contention and confirmed the conviction. 3.13. It is submitted by Mr. Barot that looking to the facts, merits, circumstances and evidences of the case available on the records, the judgment passed by the Hon'ble JMFC court needs to be quashed and set aside and the original complainant deserves to be awarded with the compensation of the disputed cheque amount of Rs. 4 lakhs along with the interest. 4. Mr. Neeraj Soni, learned advocate for the respondent No. 2 original accused has submitted that once it is admitted by the accused that the cheque is signed by the accused, the accused has to bring on record facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would act upon plea that it did not exist. Said fact and circumstance emerges from following details: 4.1. Mr. Neeraj Soni has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2 original accused has submitted that it is the case of the appellant that the accused was in need of money and wanted to sell his house to the appellant. The appellant wanted to purchase the same and had paid Rs. 4,00,000/-. It is respectfully stated that it is a concocted story by the appellant as the appellant has admitted few facts in his cross examination. The cheque was given by the accused to the appellant was for security purpose, which is misused by the appellant 4.9. Mr. Neeraj Soni, learned advocate for the respondent No. 2 original accused has relied upon the decision in the case of Basalingapa Vs. Mudibasappa, reported in 2019 (5) SCC 418 in support of his submission that the presumption u/s. 139 is a rebuttable presumption; the onus is not heavy upon the accused; when the accused is entitled for acquittal; the burden can be discharged by direct evidence or by bringing on record the preponderance of probability and the accused can rely upon material submitted by the complainant. 4.10. Mr. Neeraj Soni, learned advocate for the respondent No. 2 original accused has relied upon the decision reported in Anss Rajashekar Vs. Augustus Jeba Ananth, reported in 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has also not come on record that on what basis the said account is prepared. Any statement or account accompanying the Income tax Verification Form has not been produced on record. (c) The complainant has admitted in his deposition that he was aware that the House bearing no. B/8, Kapileshwar Apartment was not in the name of the accused. He has further admitted that no banakhat has been registered for sale of the aforesaid house with the accused. He also admitted that no suit for recovery of the amount has been filed by the complainant against the accused. (d) There is no writing with respect to cash payment of Rs. 2,75,000/- by the complainant to the accused, though he is aware that the payment more than Rs. 50,000/- is required to be made by cheque or draft. 8. I have gone through the material on record and on thoughtful consideration I am also of the opinion that the findings recorded by the trial court is just and proper and in consonance with the evidence on record and no other conclusion is possible. 9. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of The Proof of Guilt by Glanville Williams, second edition: I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos. 28. The fact that there has to he clear evidence of the guilt of the accused and that in the absence of that it is not possible to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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