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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 ..... used no. 1 is a sole proprietorship firm in the name & style of M/s Veer Daily Needs and Karyana Store and accused no. 2 is the proprietor of the firm. The accused no. 2 approached the complainant in March 2009 for a loan of Rs. 3,10,000/-. The complainant agreed and advanced an amount of Rs. 3,10,000/- in March 2009 after arranging it from his relatives and friends. Accused No.2 undertook to repay the amount by the end of October 2009. Accused no.2 issued a post-dated cheque of Rs. 3,10,000/- in favour of the complainant drawn on State Bank of India, Boileauganj in the discharge of his legal liability. The complainant presented the cheque before Punjab National Bank, Totu, Shimla, who sent it to the State Bank of India for realization; however, the cheque was dishonoured with the endorsement 'account closed'. The complainant served a notice upon the accused by means of a registered A.D. cover and certificate of posting. The notice was duly served upon the accused. The accused failed to make the payment despite the receipt of the notice; hence, the complaint was filed to take action against the accused. 3. Learned Trial Court found sufficient reasons to summon the accused. When th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso filed an application under Section 311 of Cr.P.C. for recalling himself for further examination. It was asserted that the learned Trial Court held that the income of the applicant ranged between Rs. 1,70,000/- to Rs. 2,50,000/- and he could not have advanced a sum of Rs. 3,10,000/- to the accused. The complaint was dismissed based on this reasoning. The complainant wants to prove the Income Tax Return filed by him and examine himself to prove these returns. Hence, it was prayed that the present application be allowed and the complainant be permitted to be recalled. 10. The application is opposed by filing a reply taking preliminary objections regarding lack of maintainability, the complainant being estopped from filing the application by his act, conduct and acquiescence, and the application having been filed to fill up the lacuna. The contents of the application were denied on merits. It was asserted that the complainant cleverly placed on record the copy of the Income Tax Return in which an amount of Rs. 3,10,000/- was stated to have been advanced by him to the accused. This is contrary to the statement in the crossexamination that the complainant had filed the Income Tax Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 16. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:- "15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police(2012) 10 SCC 383 whereunder it came to be held as follows: "33. The expressions "erroneous", "wrong" and "possible" are defined in the Oxford English Dictionary in the following terms: "erron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed. 18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227, it has been held by the Privy Council as under: But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper wei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disturb the finding of acquittal recorded by the trial court." 17. The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court. 18. Learned Trial Court heavily relied upon the report of the Handwriting Expert issued by Scientist 'B', CFSL, Government of India. It was submitted that this document was not per se admissible and it was essential to examine the Expert, who had issued the report. This submission has to be accepted as correct. It was laid down by this Court in State of Himachal Pradesh versus Anoop Kumar 2008 (1) ShimLC 71 that the opinion of a Handwriting Expert is required to be proved in accordance with the law. It was observed:- "The allegations against Anoop Kumar are that he forged G.R. Ext.PW-18/A. In support of forgery allegedly committed by Anoop Kumar, the prosecution has relied on handwriting expert report Ext. PW-19/A. This report was produced by P.W.-19 Garib Dass, a Retired Inspector. The prosecution did not examine handwriting experts to prove Ext.PW-19/A. Section 293, Cr.P.C. permits the use of some reports in evidence but the report of a handwriting expert is not included in Section 293, Cr.P.C. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant during the Trial. He has not shown any reason as to why he had not produced these documents before the learned Trial Court. The application has been filed under Section 311 of Cr.P.C. however, the application is in the nature of additional evidence to prove the additional record mainly the Income Tax Return and will properly fall within the definition of Section 391 of Cr.P.C. 23. It was laid down by the Hon'ble Supreme Court in Ashok Tshering Bhutia Versus State of Sikkim (2011) 4 SCC 402 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. It was observed: "28. Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptionally suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larger Bench of this Court held as under: "Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of the exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the C.P. Code." 32. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in the public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35] 37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar[(2019) 4 SCC 197]]. Therefore, the mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513] 43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact. 44. The accused may adduce direct evidence to prove that the instrument was not issued in the discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of 'probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist." 28. It was further held that the complainant is not supposed to lead any evidence to establish his financial capacity. However, the accused has a right to demonstrate that the complainant did not have the financial capacity. The Court has to see the evidence whether the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retired in 1997 on which date he received a monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs. 4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs. 4,50,000/-being admitted in the year 2010 and further payment of loan of Rs. 50,000/-with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per the own case of the complainant, he made a payment of Rs. 18 lakhs. During his cross-examination, when the financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts. 27. There was another evidence on the record, i.e., a copy of the plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of a loan of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of 6,00,000/-(Rupees Six Lakh) and on account of long-standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs. 6,00,000/-(Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honoured. But to the surprise of the Complainant on presentation of the same for collection through his Bank, the Cheque was returned by the Bank with an endorsement "Funds Insufficient" on 01-03- 2012." 29. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding the date on which the loan was given on one side and what was said in cross examination in the other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply to the notice denying the execution of the cheque or legal liability. Even before the trial court, the appellantaccused has not denied his signature on the cheque. 30. We are of the view that when evidence w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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