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TMI Blog2022 (7) TMI 1491X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 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. In the instant case, the accused has succeeded in rebutting the presumption, showing preponderance of probability and hence, onus shifts upon the complainant to prove otherwise, however, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt as there is nothing on record to show that the land belonged to the complainant and that, he had 30% share in the said land - On re-appreciation and reevaluation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998 for Rs.1,86,540/- each. However, on 04.06.1998, when the complainant deposited the cheques in the Union Bank, Palanpur, the same were returned by the bank with an endorsement Stop Payment . On enquiring with the bank, the complainant allegedly found that, in fact, no sufficient fund was there in the account of the accused. Accordingly, the complainant issued a legal notice dated 17.06.1998 under the provisions of the NI Act, which was served upon the respondent accused, who replied the said notice on 17.07.1998. Since the respondent No. 1 did not pay the cheque amounts, the complainant constrained to file a complaint under Section 138 of the NI Act before the learned Judicial Magistrate First Class, Palanpur, who, on conclusion of the trial, convicted the accused for the alleged offence and sentenced him to undergo simple imprisonment for one year with fine of Rs.5,000/-, in default thereof, to undergo further simple imprisonment for two months. The accused was also ordered to pay compensation in the sum of Rs.2,50,000/- to the complainant. The said judgment and order was the subject matter of challenge before the learned Sessions Judge, who, on re-appreciation and reevalua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, submitted that though the case against the accused was proved beyond reasonable doubt, however, the learned Sessions Judge has not properly appreciated the evidence on record and thereby, has committed an error in reversing the judgment and order of the trial Court and recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, she urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. 3.4 In support, the learned advocate for the appellant has relied upon following decisions: 1) Kishan Rao v. Shankargouda, (2018) 8 SCC 165; 2) Rahul Sudhakar Anantwar v. Shivkumar Kanhaiyalal Shrivastav, (2019) 10 SCC 203; 3) Triyambak S. Hegde v. Sripad, 2021 SCC OnLine SC 788; 4) Basalingappa v. Mudibasappa, (2019) 5 SCC 418; 5) Rangappa v. Mohan, AIR 2010 SCC 1898; 6) Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; 7) M/s. Indus Airways Pvt. Ltd. and Others v. Magnum Aviation Pvt. Ltd., 2014 (3) GLR 2482 SC; 8) Jagdish Rai Agarwal and Others v. The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property was of the Jain Panjrapol Trust and the appellant had no right/title in the same. Further, it was learnt that the said trust had neither sold nor agreed to sale the land in question in favour of the appellant complainant. Accordingly, on realizing that the respondent No. 1 was cheated and the complainant breached the trust, he got the payment stopped. He submitted that, attention was also drawn of the complainant in that regard and also demanded the cheques back, but the complainant sought time to return and then, deposited the same in the bank. The learned advocate for the respondent No. 1 further submitted that even the demanded amount is not as per the so-called outstanding and there is anomaly in the same. Accordingly, he submitted that when the debt is not proved to be the legally enforceable debt as there was no consideration, the learned Sessions Judge has rightly reversed the judgment and order of the learned trial Court and thereby, acquitted the respondent No. 1. 4.4 The learned advocate for the respondent No. 1 accused further submitted that the learned Sessions Judge has rightly acquitted the accused as the complainant failed to bring home the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 6.4 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wness 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 AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) (1) An appellate court has full power to 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 cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt s conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved and held in para 10 as under: (SCC p. 233) 10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held 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 satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. (emphasis supplied). 7. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, he approached the complainant, however, thereafter, the complainant initiated the proceedings in question. In the submission of the respondent No. 1, since, the agreement itself is invalid as being without consideration, there is no question of debt being legally enforceable debt. Further, the respondent No. 1 has gained nothing out of such a transaction. 7.4 From the facts and record, following salient points have emerged: i) agreement, Exh. 29 was entered into between the complainant and the respondent No. 1, whereby, the complainant had agreed to sell his 30% share in the land in question to the respondent No. 1 for the sale consideration of Rs.5,70,620/-; ii) consequent upon the said agreement, the respondent No. 1, admittedly, paid Rs.3,09,000/- to the complainant and for rest, issued three cheques; iii) there is nothing on record to show that the complainant had 30% share in the land in question; iv) there is also nothing on record to show the ownership of the complainant in the land in question; v) further, admittedly the property is of the trust and there is nothing on record to show that the complainant and others had purchased the said l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Sessions Judge. 7.6 So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, 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 the complainant in order to raise a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aspect of presumption under Section 139 of the NI Act, which is indisputably rebuttable one. There cannot be dispute as regards to ratio laid down in the same, nonetheless, as discussed herein above in detail, the debt is not proved to be the legally enforceable debt. Further, the respondent accused has succeeded in rebutting the presumption against him, by showing preponderance of probability. Besides, in V. Sampath (supra), the bounced cheque was issued towards balance sale consideration wherein, the sale transaction was not completed, however, the accused was already in possession of the sale property. Nonetheless, in the case on hand, the sale property itself does not belong to the complainant; further, it is not the case that the accused is in possession of the same; the transaction is without any consideration (property in question). Accordingly, these decisions would be of no help to the appellant. 9. The learned advocate for the respondent No. 1 has relied upon some decisions, as referred to herein above. If the decision in Krishna Janardhan Bhat (supra), is referred to, it is observed by the Apex Court that, The proviso appended to the said section provides for co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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