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TMI Blog2023 (10) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... nifestly erroneous and palpably perverse, the Appellate Court should take a contrary view. It is more because an order of acquittal has the presumption of innocence in favour of the accused. In the instant case, the complainant has alleged that the accused had issued Ext P6 cheque in his favour in discharge of a legally enforceable debt. The cheque, on presentation to the bank for encashment, got dishonoured due to insufficient funds and despite receipt of the demand notice, the accused failed to pay the cheque amount. Hence, the accused committed the above offence - Indisputably, the complaint has been filed by the complainant ( Mathew K.Cherian represented by his power of attorney holder PW1) in his individual capacity. PW1 has not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty for the offence under Section 138 of the Negotiable Instruments Act (for brevity, N.I.Act ). For the sake of convenience, the parties are referred to as per their status before the Trial Court. Brief facts 2. The complainant had filed the above complaint, through his power of attorney holder, alleging that the accused had issued Ext P6 cheque in his favour for an amount of Rs.19,000/-, which, on presentation to the bank for encashment, got dishonoured by Ext P7 memorandum due to insufficient funds in the bank account of the accused. Although the complainant had issued Ext P9 statutory lawyer notice and the accused had received the same, he did not pay the cheque amount. Hence, the accused committed the above offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal. It is only when the conclusions arrived at by the Trial Court is manifestly erroneous and palpably perverse, the Appellate Court should take a contrary view. It is more because an order of acquittal has the presumption of innocence in favour of the accused. 9. In Jafarudeen vs. State of Kerala [2022 KHC 6449], the Honourable Supreme Court, after referring to its earlier judgments, has laid down the broad principles to deal with appeals against orders of acquittal. It is apposite to refer to the relevant portion of the judgment, which reads as follows: 25. Scope of Appeal filed against the Acquittal: While dealing with an appeal against acquittal by invoking S.378 of the Cr.PC, the Appellate Court has to consider whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Indisputably, the complaint was filed through the power of attorney holder of the complainant, who was examined as PW1. It is true that the complainant had proved the ingredients of the offence under Sec.138 of the N.I Act whereby the onus of proof shifted to the accused. 14. The accused got himself examined as DW1 and gave evidence that he was a resident of Ranni and he had no acquaintance with the complainant. In fact, he had availed a loan from the Kossamattom Bank, Ranni Branch and issued Ext P6 cheque as security for a loan availed from the bank. He paid the entire loan amount as evidenced by Ext D1 passbook and he had no transaction with the complainant. In the crossexamination of PW1 the power of attorney holder of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the finding that there was no business transaction between the complainant and the accused as alleged in the complaint, there is also no specific assertion as to the competence and knowledge of PW1 as regards the alleged transaction between the complainant and the accused. Thus, I am of the definite view that the learned Magistrate has rightly concluded that Ext P6 cheque was not issued towards a legally enforceable debt. 17. On a re-appreciation of the materials on record, this Court is of the definite view that there is no error or illegality in the impugned judgment passed by the learned Magistrate holding the accused not guilty for the offence under Sec.138 of the N.I Act. Thus, I confirm the said finding. Consequentially, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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