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TMI Blog2022 (7) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant had a legal dues from the respondent accused. As admitted by the complainant himself, it is clear that there was no privity of contract between the company and the accused. Further, it is also an admitted fact that the contract/agreement was made by Pankajbhai Dhirajlal Varia in his personal capacity and not by the company. Besides, there is nothing on record to show as to how and as to why for the so-called affairs of the company, Pankajbhai Dhirajlal Varia acted in personal capacity. If at all it is believed that the cheques were issued by accused to the company, in that case also, there is not an iota of evidence to show that the cheques were issued for the debt in question inasmuch as no details of transaction, books of accounts or any other document is produced on record to show the privity of contract between the parties. Thus, the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities - the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave its place (hotel) on rent for conducting such activity to the respondent No. 2 for a period of 10 months for which, different cheques had been issued, which on being deposited in the bank, returned with an endorsement Account Closed and hence, the complainant issued legal notices to the respondent No. 2 through advocate by RPAD, which though served upon the respondent No. 2, the respondent No. 2 did not pay the amount and also not replied to the said notice, the complainant was constrained to file complaints before the competent Court at Bhavnagar under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as the NI Act ). The details of cheques, amount and case number etc. are as follow: Sr. Cr. A. No. C. C. No. Cheque No. Amt. Cheque Issuance date Cheque deposited date Dishonoured on 1. 1587/ 2009 2713/ 2004 2656312 6,00,000/- 28.08.2003 09.02.2004 12.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 2 and came to be dishonoured when presented before the bank with an endorsement Account Closed . Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheques were issued for discharge of legal liability towards complainant. Further, the signature on the cheques were also not in dispute. In his submission, the learned trial Judge 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. 4.2 The learned advocate for the appellant further submitted that three conditions to constitute an offence under Section 138 of the NI Act viz. i) cheque ought to have been presented in the bank within six months or within its validity, ii) holder in due course ought to have make demand by giving notice in writing within 30 days on receiving information as to return of cheque and iii) drawer of the cheque should have failed to make payment within 15 days of receipt of such notice, are satisfied and fulfilled by the appellant, however, the learned trial Judge has failed to consider this aspect of the matter in true and proper perspective. 4.3 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the evidence on record. He submitted that merely because the account of the respondent No. 2, in the books of the appellant could not be produced on record, the learned trial Judge ought not to have drawn adverse inference, moresowhen, it is admitted by the respondent accused in his further statement that he had given the cheques towards tariff to the company. 4.7 Moreover, it is submitted by the learned advocate for the appellant that the learned trial Judge has also erred in observing that the appellant has not obtained any permission for starting hospital as the appellant was not required to do so and in fact, the respondent No. 2 did not take proper permission as a Medical practitioner. 4.8 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, the learned trial Judge 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. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal capacity but he has made personal agreement with the respondent No. 2 . The learned trial Judge has further observed that, there is nothing on record to show that the company has given any authority to the complainant, being Director, to lodge the complaint . Thus, in the absence of any legal authorization to act on behalf the company, the learned trial Judge has rightly observed that the complainant ought to have filed the complaint getting due authorization for the same. 5.3 The learned advocate for the respondent No. 2 has heavily submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against him. 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. 6. The Court has also heard the learned APP for the respondent No. 1 State. 7. The Court has considered the rival submissions made by the learned advocates for the respective parties and also gone through the impugned judgment and order of the trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 7.5 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, 2020 SCC OnLine SC 988 the Apex Court has observed as under: 9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence , or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the accused guilty on reappreciation 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 have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses 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 trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement 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 of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.] 8.1 Thus, in the case under NI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question inasmuch as no details of transaction, books of accounts or any other document is produced on record to show the privity of contract between the parties. 8.2 Under Sections 118(a) and 139 of the NI Act, there are provisions as regards presumption. At this juncture, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (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 presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 23.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Pankajbhai Dhirajlal Varia by the accused, it has come on record that there was no contract and/or agreement between the company and the accused but the same was in the personal capacity by Pankajbhai Dhirajlal Varia. Further, Pankajbhai Dhirajlal Varia has not produced original contract/agreement on record. Moreover, as said earlier, the complainant has not produced any books of account and/or any details of transaction between them and thus, considering all these aspects of the matter, the learned trial Judge has come to a conclusion that the accused has succeeded in rebutting the presumption, showing preponderance of probability and that the complainant has failed to prove that the cheques were drawn towards legally enforceable debt. Thus, when the complainant has failed to fulfill the initial burden of proving the legally enforceable debt, the presumption against the respondent accused is justifiably rebutted. 9.1 Considering the oral as well as the documentary evidence on record, following aspects have been weighed by this Court: i) admittedly, the complaint is filed on behalf of the company by Pankajbhai Dhirajlal Varia and no authorization letter is produced on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or that there is some material before the Court to indicate that the complainant-company has no intention to prosecute the accused. The learned Sessions Judge was wholly in error in allowing the appeal and setting aside the conviction solely on the ground that the revision petitioner had not produced the proper authorization . In the instant case, if at all it is believed that the authorization is not required, then also, there are several contradictions. As noted above, on one hand, the complaint is being filed on behalf of the company with a case that debt is due to the company by the respondent accused, whereas, in cross-examination, Pankajbhai Dhirajlal Varia, has admitted that the contract/agreement was made in his personal capacity and not by the company. Further, if at all it is believed that the company had entered into contract with the respondent accused, in that case also, there is nothing on record to show any details and/or books of accounts qua the transaction in question. The appellant being a private limited company, is expected to maintain books of accounts as well as details of transaction with any party. Further, it is also not proved by the appellant that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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