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TMI Blog2024 (1) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) TMI 1539 - SUPREME COURT ] that the power to receive additional evidence must be exercised sparingly in those cases where the Court is satisfied that additional evidence would serve the interest of justice. Since no plausible reason has been assigned for not producing the additional evidence before the learned Trial court; therefore, it is impermissible to lead the additional evidence in the appeal. Consequently, the present application fails and the same is dismissed. The complainant did not examine these persons. Thus, the learned Trial Court had rightly doubted the financial capacity of the complainant and had rightly held that the presumption contained in Section 139 of the Negotiable Instrument Act was rebutted. This was a reasonable view taken by the learned Trial Court - the submission that the learned Trial Court had wrongly held that the presumption under Section 139 of the NI Act was rebutted is not acceptable. The judgment passed by the learned Trial Court was a reasonable one and no interference is required with the same - the present appeal fails and the same is dismissed. - Hon ble Mr. Justice Rakesh Kainthla, Judge For the Appellant : Mr. Pee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), and Alkesh Sain (CW4). 5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that the complainant was known to him. He admitted that he is the proprietor of Veer Daily Needs. He admitted that the cheque was dishonoured due to insufficient funds. He admitted that he had received the notice and stated that he had replied to the notice. He stated that he had handed over a cheque of Rs. 10,000/-. The amount was changed. The cheque was without any date. The accused examined Thakur Singh Verma (DW1) and Prem Pal (DW2) in defence. 6. The cheque was also sent for comparison and the report of the handwriting expert was received. 7. Learned Trial Court held that the cheque carries a presumption of consideration under Section 139 of the Negotiable Instruments Act and the burden lies upon the accused to rebut this presumption. The accused has taken a defence that a cheque was issued for Rs. 10,000/- and was tampered with. This was corroborated by the report of the handwriting expert in which it was mentioned that figure 3 was added subsequently. The complainant claimed that his annual income is Rs. 2,50,000/- and he is an income tax payee. He admitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 269 (SS) of the Income Tax Return; therefore, it was prayed that the application be dismissed. 11. I have heard Mr. Peeyush Verma, learned counsel for the appellant and Mr. Ravinder Singh Jaswal, learned counsel for the respondents. 12. Mr. Peeyush Verma, learned counsel for the appellant/complainant submitted that the learned Trial Court erred in relying upon the report of the Handwriting Expert. The Expert was not examined and no opportunity was given to the accused to rebut the report. The report of the Handwriting Expert is not admissible under Section 294 of Cr.P.C. The learned Trial Court could not have relied upon the report without proper proof as per the law. Learned Trial Court erred in holding that the complainant did not have the financial capacity to advance the sum of Rs. 3,10,000/-. The complainant wants to examine himself to prove the Income Tax Return filed by him and the advancement of the loan. Therefore, he prayed that the application be allowed and the complainant be permitted to be recalled. 13. Mr Ravinder Singh Jaswal, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court. He submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court. 16. It need not be restat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused to the benefit of any doubt; and 4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect: 42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handwriting expert report Ext.P.W.-19/A cannot be read in evidence. In the absence of a handwriting expert report, there is nothing on record to show that Anoop Kumar has forged Ext.P.W.-18/A. The learned Sessions Judge has rightly acquitted Anoop Kumar under Section 468, I.P.C. 19. Therefore, the learned Trial Court erred in relying upon the report without the examination of the Expert. 20. The complainant-Amar Dev (CW1) stated that he knew the accused no. 2 for 8-9 years. The accused came to him in March 2009 and stated that he was doing the construction work and required Rs. 3,10,000/-. He took the money from his relatives and advanced Rs. 3,10,000/-. The accused assured to return the amount in October and issued a post-dated cheque (Ext. CW1/A). He presented the cheque but it was dishonoured. He stated in his cross-examination that he knew the accused because the accused used to get his Income Tax Returns filled out from him (complainant). The complainant had filed the return of the accused amounting to Rs. 1,50,000/-. The income of the complainant was Rs. 2,50,000/-. The complainant had submitted a return of Rs. 1,70,000/- during the previous year but he could mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on the part of the prosecution before the court or for the vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. (Vide Rajeswar Prasad Misra v. The State of West Bengal Anr., AIR 1965 SC 1887; Ratilal Bhanji Mithani v. The State of Maharashtra Ors., AIR 1971 SC 1630; Rambhau Anr. v. State of Maharashtra, AIR 2001 SC 2120; Anil Sharma Ors. v. State of Jharkhand, AIR 2004 SC 2294; Zahira Habibulla H. Sheikh Anr. v. State of Gujarat Ors., (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352). 30. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal Anr., AIR 1987 SC 1321, dealing with the issue held as under: ...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where the evidence could have been produced before the learned Trial Court, the application for additional evidence cannot be allowed by the learned Appellate Court. 25. Since no plausible reason has been assigned for not producing the additional evidence before the learned Trial court; therefore, it is impermissible to lead the additional evidence in the appeal. Consequently, the present application fails and the same is dismissed. 26. Learned Trial Court held that there is a presumption under Section 139 of N.I. Act that a cheque was issued in discharge of the legal liability. There is no dispute with this proposition of law. It was laid down by the Hon ble Supreme Court in Rajesh Jain versus Ajay Singh, 2023 STPL(Web) 322 SC = 2023 INSC 888, that the Court has to presume the existence of legally enforceable debt or liability. It was observed: 34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further. 39. John Henry Wigmore[Rules of Evidence- The Hidden Origin of Modern Law] on Evidence states as follows : The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule. 40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the nonexistence of the presumed fact beyond reasonable doubt. The accused must meet the standard of preponderance of probabilities , similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance, those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well. 45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities, there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court have noted that in the case under Section 138 of the N. I. Act, the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not civil suit. At the time, when the complainant gives his evidence unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the crossexamination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to indicate that in December 2009, he gave Rs. 7 lakhs in a sale agreement, in 2010, he made a payment of 4,50,000/-towards sale consideration and further, he gave a loan of Rs. 50,000/-for which complaint was filed in 2012 and further loan of Rs. 6 lakhs in November 2011. Thus, during the period from 2009 to November 2011, an amount of Rs. 18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs. 8 lakhs only. The High Court observed that though the complainant is a retired employee, the accused did not even suggest that pension is the only means for the survival of the complainant. The following observations were made in Paragraph 16 of the judgment of the High Court: 17. Though the complainant is a retired employee, the accused did not even suggest that a pension is the only means for the survival of the complainant. Under these circumstances, the Trial Court's finding that the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6 lakhs given to the accused, within 02 years, an amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. The court cannot insist on a person to lead negative evidence. The observation of the High Court that the trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. 30. In the present case, the complainant admitted in his cross-examination that his yearly income is Rs. 2,50,000/-. He also admitted that he had submitted the Income Tax Return of Rs. 1,70,000/-. Therefore, it is apparent from the admission made by the complainant in his cross-examination, that he did not have the financial capacity to pay Rs. 3,10,000/-. 31. The complainant claimed that he had Rs. 1,00,000/- in cash with him and he borrowed the rest of the amount from Amar Chand, Mansa Ram and his father. He admitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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