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TMI Blog2007 (2) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ance consideration for sale of a property in her favour by the wife of the respondent. 4. According to the appellant, Smt. Sathyabhama owned a property bearing old Survey No. 1363/3-1-1 measuring an area of 47 cents. She had executed two Sale Deeds, one in favour of Mr. Ramchandran Nair and another in favour of Thankamony conveying to them 20 cents and 27 cents respectively. The Sale Deeds were allegedly executed in favour of the aforementioned persons as a security in lieu of some amount paid in her favour. However, when the Thankamony and Ramchandran Nair demanded the money back from the wife of the respondent, the appellant was approached for purchase of the said property for a consideration of Rs. 5 lakhs. On 05.09.1997, the said Thankamony executed a Deed for Sale in favour of the appellant wherefor she had withdrawn a sum of Rs. 4 lakhs from bank. The said amount was paid to Sathyabhama which in turn was paid to Thankamony and Ramchandran Nair. However, as there was a dispute in regard to the exact area of the property and measurement therefore had not been taken, she had given a cheque to Sathyabhama in the name of her husband as demanded by Sathyabhama on an understandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Judge recorded a judgment of acquittal. On an appeal preferred by the respondent herein there against, the High Court, however, reversed the said finding, opining that the appellant had not been able to discharge the burden of proof laid down under Sections 138 and 139 of the Act, which read as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by 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 provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant herein contained in Annexure R-1, which is in the following terms: I, Sukumaran Kamala at Baiju Bhawanam in Puthoor Mukku, Kadavoor Desom in Kadavoor Village hereby execute this agreement on 05.09.1997 (Nineteen Ninety Seven September five) and given to Vidhyadharan s/o Kunhikrishnan at Vidhyamandiram, at Error Amsom Desam in Eroor Village. I have obtained from you Rs. One lakh for the purpose of purchasing a property. I hereby undertake that I will repay Rs. One lakh within five months from this date. If I fail to repay Rs. One lakh within the due date you are entitled to this amount along with interest from such date and that you can realize from my properties. All the above stipulations have written with my full knowledge and consent and signed. 9. The learned Counsel would contend that keeping in view the fact that in terms of the said document a cheque was drawn by the appellant herein within a period of 5 months from 05.09.1997, a presumption in terms of Section 139 of the Act was correctly raised by the High Court. It was submitted that even if the defence raised by the appellant herein was true, she has failed to offer any explanation as to why the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Indisputably, a sale deed was executed in favour of the appellant herein by the persons in whose favour the wife of the respondent had executed Deeds of Sale. A sum of Rs. 4 lakhs had been withdrawn by the respondent from the bank. The document was executed on the same day on which Exhibit P-l was executed. 12. The learned Trial Judge as also the High Court had arrived at a finding of fact that the testimony of the appellant (DW-1) was supported by other witnesses examined on her behalf. The High Court, however, proceeded to hold that Ramchandran Pillai and Thankamony had not been examined nor the purported Deeds of Sale executed on their behalf by the wife of the respondent had been examined. Appellant, as noticed hereinbefore, examined herself. The wife of the complainant had been working in a school near her house. Her explanation in regard to the circumstances in which she had drawn a cheque was not controverted. Appellant also examined the scribe of the deed. According to the appellant, two Sale Deeds were executed showing considerations therefore as Rs. 80,000/- and Rs. 20,000/- only at the instance of the appellant although the agreed consideration therefore the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... 14. The High Court, on the other hand, only on the premise that said Ramchandran Pillai and Thankamony had not been examined and the appellant did not exhibit the Deeds of Sale executed in their favour by the wife of the respondent opined that the said finding was perverse. The reasonings of the learned Trial Judge had not been met by the High Court. Nothing has been stated as to why the findings of the learned Trial Judge were not probable. 15. Having considered the entire fact situation obtaining in the present case, we are of the opinion that the defence case cannot said to be wholly improbable one. If it was probable, the findings of the learned Trial Judge could not have been thrown out without meeting the reasonings therefore. The High Court, therefore, in our opinion was not correct in interfering with the said Judgment. It is now well settled when two views are possible, the High Court while exercising its appellate power against a judgment of acquittal, shall not ordinarily interfere therewith. [See V. Venkata Subbarao v. State represented by Inspector of Police, A.P. 2007CriLJ754 . 16. For the reasons aforementioned, the impugned judgment cannot be sustained, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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