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TMI Blog2024 (6) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on the materials available on record or whether there are materials, which warrants grant of leave by this Court. In the absence of any witness to the passing of the amount from the petitioner to the respondent, even to aver that such a transaction could have taken place, it is incumbent on the petitioner to prove that he had the wherewithal to lend the said amount as loan to the respondent. In this regard, a perusal of the order of the court below reveals that the petitioner has not established as to where from he had the amount to be given as loan to the respondent. The petitioner merely claims that it came from his wife s side towards sale of some properties. However, there are no materials to establish the same. The presumption available u/s 139 has to be rebutted by the accused, whereinafter, a duty is cast on the complainant to establish that the cheque, which stood dishonoured, was issued for the purpose of discharging a legally enforceable debt. In the case on hand, the respondent, through the evidence of D.W.1 and other documentary evidence has established that the cheques had not been issued to the petitioner by the respondent and such being the case, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective dishonoured cheques through notice dated 4.3.2016, which was received by the respondent on 8.3.2016, but inspite of the same, the respondent failed to pay the amount. It is the further case of the petitioner that the details about the promissory note obtained by the petitioner to the tune of Rs.20,00,000/- was not mentioned to his counsel due to ignorance which was not mentioned in the legal notice. 5. It is the further case of the petitioner that the respondent without paying the amount towards the dishonoured cheques, issued false and frivolous reply and that the respondent in his reply notice has misrepresented and made some false allegations against the petitioner as if the petitioner is making false claims with regard to amount to the tune of Rs.10,00,000/- through his notice, which notice, the petitioner claims ignorance and has not issued such a notice. Since the respondent failed to pay the amount of the dishonoured cheques, the petitioner filed the complaint u/s 138 of the Act. 6. Upon examination of the complainant on oath u/s 200 Cr.P.C. and perusing the records, the court below, finding a prima facie case being made out, issued summons to the respondent and upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, which has since been deposited, the deposition of D.W.1 that the cheque was given to Pannerselvam is a concocted story to defeat the legitimate claim of the petitioner. The aforesaid facts have not been properly considered by the court below while acquitting the accused, which requires interference at the hands of this Court. 10. The present petitions have been filed seeking leave of this Court to file appeal as against the respondent herein for failing to discharge a legally enforceable debt, which attracts offence u/s 138 of the Act. However, for granting leave to file appeal, necessarily the petitioner has to prove that there exists a prima facie case and the materials on record reveals that such a case exists, which has not been properly considered by the Court below while negativing the case of the petitioner. 11. Time and time again, the scope and power of the High Court to interfere with an order of acquittal recorded by the trial court has been highlighted by the Supreme Court and recently in Babu Sahebagouda Rudragoudar Ors. Vs State of Karnataka (C.A. No.985/2010 Date 19.04.2024), the Supreme Court had captured the ratio succinctly, which have to be follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of H.D. Sundara Ors. v. State of Karnataka (2023 (9) SCC 581) this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: - 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible. 39. Thus, it is beyond the pale of doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gedly parting with the amount by way of loan has not been shown either in the legal notice nor any action has been taken on the said promissory note by the petitioner. But for the dishonour of the cheques alleged to have been given by the respondent, the complaint has been lodged u/s 138 of the Act. 16. In the aforesaid factual scenario, Sections 138 and 139 of the Act, which are material to find out the legal presumption, which is casted on the accused/respondents with regard to the cheque being issued for discharging a legally enforceable debt, which ought to be rebutted through materials to absolve the respondent, the said provisions are quoted hereunder for better appreciation:- 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the issuance of the cheques, but even with regard to the loan alleged to have been obtained from the petitioner. When there is a flat denial of the cheques by D.W.1, necessarily it is incumbent on the petitioner to prove that indeed he had given the loan to the respondent towards which the cheques were issued. 19. In this backdrop, a careful perusal of the proof affidavit of the petitioner, examined on oath, reveals that the petitioner had alleged to have given the amount to the respondent at the office of the respondent in cash. It is the further deposition of P.W.1/petitioner that there were no witnesses to the transaction with regard to the passing of the amount from the petitioner to the respondent. 20. In the absence of any witness to the passing of the amount from the petitioner to the respondent, even to aver that such a transaction could have taken place, it is incumbent on the petitioner to prove that he had the wherewithal to lend the said amount as loan to the respondent. In this regard, a perusal of the order of the court below reveals that the petitioner has not established as to where from he had the amount to be given as loan to the respondent. The petitioner merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest for the balance period, if he had really taken the loan. However, the cheques are alleged to have been issued only towards the principal and there is no material with regard to the interest for the balance period. 25. Further, there is no whisper from the petitioner as to why he has not pursued his remedy under the promissory note by trying to enforce the same before the civil court. This clearly shows that all is not well with the petitioner and the petitioner has not come to court with clean hands. 26. Though the cheques are claimed to be with regard to the discharge of a legally enforceable debt, as alleged by the petitioner, which has been disputed, however, as stated above, the petitioner has not proved that there is a subsisting legally enforceable debt towards which the cheques were given. In the absence of there being a legally enforceable debt, the rigours of Section 138 of the Act would not come into play and, therefore, taking recourse of Section 138 would be impermissible. It has been the consistent ratio laid down by the Apex Court that the dishonour of the cheque alone cannot be the criteria to invoke Section 138 of the Act, but the cheque, which stood disho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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