9911796707
TMI Blog2024 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... egally enforceable debt or liability are raised against the accused. On a perusal of the record, it is seen that right from the time of the framing of notice, the statement under Section 313 of the CrPC, and during the course of the trial, Respondent No. 2 denied issuing the cheque and his signatures on the cheque. It is seen that in order to buttress his claim, an application was moved by Respondent No. 2 seeking expert opinion for verification of the signature of Respondent No. 2 and comparison with those appearing on the impugned cheques. It is seen further that the application was allowed, and the original cheques were sent to CFSL for comparison with the admitted signature of Respondent No. 2 on account opening form, vakalatnama, and bail bond. It is pertinent to note that the presumptions under Section 118 and 139 of the NI Act are not absolute, and may be controverted by the accused. In doing so, the accused ought to raise only a probable defence on a preponderance of probabilities to show that there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present petition - The present leave petition is accordingly dismissed. - HON BLE MR JUSTICE AMIT MAHAJAN Advocates who appeared in this case: For the Applicant : Mr. Akshit Sawal, Advocate (through VC) For the Respondents : Mr. Ajay Chaudhary, Advocate (through VC) JUDGMENT 1. The present leave to appeal is filed for setting aside the judgment dated 16.09.2019 (hereafter impugned judgment ) passed by the learned Metropolitan Magistrate ( MM ), South East, Saket, New Delhi in CC No. 617270/2016 whereby the respondents were acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 ( NI Act ). 2. It is the petitioner s case that he had advanced a friendly loan for a sum of ₹48,00,000/- to Respondent No. 2 and accused Vishnu Partap Singh on behalf of Respondent No. 1. It is alleged that in order to repay the said loan, Respondent No. 2 and accused Vishnu Partap Singh, being partners of Respondent No. 1 issued two post-dated cheques on 04.04.2011 amounting to ₹24,00,000/- each, which on presentation, returned unpaid with the remarks Insufficient Funds vide return memo dated 04.04.2011. It is alleged that thereafter the petitioner sent a leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debit entry dated 04.03.2010. It was noted that the said fact was not rebutted by the petitioner, and that he had not come out with an explanation as to why a payment of ₹5,00,000/- was made. It was noted that even if the fact of advancement of loan of ₹48,00,000/- is assumed to be correct, it being proved that ₹5,00,000/- was repaid, the liability in any event would not be ₹48,00,000/-. 7. It was noted that in respect of the post-dated cheques, the petitioner was bound to prove debt as on the date appearing on the cheque. It was noted that Respondent No. 2 had taken a consistent stand that he did not avail the loan from the petitioner, and had discharged the presumptions against him on a preponderance of probabilities. It was further noted that the onus shifted on the petitioner who failed to prove any specific amount on date or mode of advancing loan to Respondent No. 2. 8. Aggrieved by the impugned judgment, the petitioner has filed the present petition. 9. The learned counsel for the petitioner submitted that the finding of acquittal ought to be reversed as the same is only based on conjectures, and not cogent evidence. He submitted that the learned Tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Funds insufficient and not on the ground that Signatures differ. He submitted that there was a delay in obtaining the expert opinion on handwriting by FSL which creates great amount of suspicion on the veracity of the FSL report. He submitted that the learned Trial Court failed to examine the handwriting of the petitioner and sent the same to FSL for comparison with handwriting on the cheques in question. He submitted that while Respondent No. 2 denied his signatures on the cheque, he did not deny that the cheque was filled up by him, and the learned Trial Court failed to seek expert opinion regarding the handwriting details filled in the cheque. 13. The learned counsel for the respondents submitted that the petitioner failed to show that there existed any legally recoverable debt. He submitted that while the petitioner alleged that he had advanced a loan for a sum of ₹48,00,000/-, as per his own cross-examination dated 13.08.2014, he was unable to point to a date as to when he advanced the money. He submitted that as per the petitioner s own stand he had not given any cash to the respondents, yet he failed to lead any documentary evidence to show the transaction through RT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of jurisdiction under Section 378 of the CrPC, is empowered to reconsider the evidence on record and reach its own conclusions, however, it is to be kept in mind that there is a double presumption of innocence in favour of the accused. High Court ought to only interfere with the finding of acquittal if it finds that the appreciation of evidence is perverse [ Rajaram s/o Sriramlulu Naidu (since deceased) through LRs: Criminal Appeal No. 1978 of 2013]. 18. The Hon ble Apex Court in the case of Chandrappa v. State of Karnataka: (2007) 4 SCC 415 has expounded upon the powers of the Appellate Court while dealing with an order of acquittal: 42. From the above decisions, in our considered view, the following general principles regarding 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The court would then take an overall view based on the evidence on record and decide accordingly. 55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption) : Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail : Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case ? xxx xxxxxx 57. Einstein had famously said: If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions. Exaggerated as it may sound, he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or proving the contents of the FSL Report. 23. It is seen that from the said FSL report, it transpired that Respondent No. 2 was not signatory to the impugned cheques. The learned Trial Court noted that the petitioner did not challenge the findings of the expert. From a perusal of the impugned judgment, it is apparent that Respondent No. 2 invariably maintained that he had not issued the impugned cheques, and that the same were not signed by him. 24. Conversely, while the petitioner endeavored to impute liability on Respondent No. 2 based on the presumption under Section 118(a) and 139, the learned Trial Court noted that Respondent No. 2 was able to dislodge the presumptions raised against him. 25. It is pertinent to note that the presumptions under Section 118 and 139 of the NI Act are not absolute, and may be controverted by the accused. In doing so, the accused ought to raise only a probable defence on a preponderance of probabilities to show that there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [ Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441] (emphasis supplied) 26. In the present case, as rightly noted by the learned Trial Court, Respondent No. 2 was able to controvert the presumptions raised against him under Sections 118(a) and 139 of the NI Act. It was noted that the FSL report substantiated the contention of Respondent No. 2 that he was not signatory to the impugned cheques. Furthermore, Respondent No. 2 was even able to raise a probable defence on a preponderance of probabilities that there existed no debt/liability in the manner pleaded by the petitioner. Respondent No. 2, in his defence evidence, relied upon the testimony of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any proof or documentary evidence, the petitioner had failed to show that the said loan for a sum of ₹48,00,000/- was advanced. 29. Much emphasis has been placed by the petitioner on the fact that the learned Trial Court erred in observing that a sum of ₹5,00,000/- had already been repaid vide debit entry dated 04.03.2010 when the same was debited and not credited to the petitioner s account. Upon a perusal of the impugned judgment, it is apparent that the learned Trial Court had merely made an observation that the petitioner had made an endeavor to prove the transfer of ₹5,00,000/- and the same was repaid vide debit entry dated 04.03.2010. It was further noted that apart from the said sum, no proof was led to establish that apart from ₹5,00,000/- there was any other advancement, albeit as per the petitioner s own stand the loan was advanced through bank transfer. 30. Even if the petitioner s case is taken at the highest, yet, since Respondent No. 2 had already raised a probable defence to dislodge the presumptions raised against him, the onus was still on the petitioner to show that there existed a debt/liability as on the date appearing on the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
