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TMI Blog2023 (1) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... District and Sessions Judge, 2nd Fast Track Court, City Sessions Court, Bichar Bhawan, Calcutta in criminal Appeal No. 195 of 2019 arising out of Case no. C- 2379 of 2001, wherein the learned Appellate Court was pleased to set aside the order of acquittal passed under Section 138 of the Negotiable Instruments Act by the Learned Metropolitan Magistrate, 5th Court, Calcutta in complaint case no. C-2379 of 2001 and convicted the appellant, thereby sentencing him to pay fine of Rs. 3,40,000/- i.d. to suffer Simple Imprisonment for 6 months. By the same order the Appellate Court directed that the whole amount of fine should be paid and disbursed to the complainant as compensation. Complaint case no. C-2379 of 2001 was initiated against the appellant/accused under Section 138 of the Negotiable Instruments Act (hereinafter referred to as N.I. Act ). The allegations made in the petition of complaint were to the extent that appellant was the proprietor of M/s Sova Builders which carried on business as dealer and stockists of the complainant company namely, Birla Corporation Ltd. The complainant company in due course of business supplied cement and raised bills and as such a current and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,70,000/- and the same is receivable for the purpose of issuance of the cheque. Learned Magistrate after assigning the reasons that no corroborating witnesses were produced by the complainant or any scrap of paper was produced before the Court to show that there was any existing debt or liability of the accused at the time of issuance of the cheque, held that the evidence do not inspire the Court to believe that the accused person issued the cheque in discharge of any existing legal debt or liability. The learned Magistrate thereafter opined that as the complainant has failed to show any legally enforceable debt or liability no offence is made out under Section 138 of the N.I. Act. As such, the accused was entitled to be acquitted under Section 251(1) of the Code of Criminal Procedure. The complainant being aggrieved appealed against the aforesaid judgment and order of acquittal passed by the learned trial Court in Criminal Appeal no. 195 of 2019. The learned Appellate Court after hearing both the parties arrived at its finding which is set out as follows: For the purpose of rebutting the initial evidential burden, the defendant can rely on the direct evidence or circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquittal fortifies such a principle of innocence as such the Appeal Courts should be slow in interfering with an order of acquittal and the same should not be done until and unless there is manifest error appearing in the records of the case. Learned advocate submitted that in the instant case the appellate Court appreciated the evidence and arrived at a finding which is completely opposite to the order of acquittal which has been passed by the learned Trial Court. According to the learned Advocate although the case was under Section 138 of the N.I. Act the complainant is required to prove the case by producing documentary evidence which are of bare minimum necessities. The learned advocate questioned the manner in which the provision of Section 139 of the N.I. Act has been interpreted in the background of the evidence available in the record. Additionally it has been submitted that the appellant by way of cross- examination rebutted the prosecution case which was unacceptable to the appellate Court and in fact the appellate Court has substituted its own views by holding that the accused was liable to pay the amount of the dishonoured cheque. Learned Advocate insists on setting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the appellate court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused. However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of inquiry therein. The same rule with same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists [Section 3, Evidence Act] . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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