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TMI Blog2020 (1) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... reponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured acquittal, the presumption of his innocence is further reinforced, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaint came to be lodged. The Trial Court after considering the evidence came to the conclusion that complainant has failed to prove that there was legally enforceable debt/liability and acquitted accused by an order and judgment dated 22nd July 2003, which is impugned in this appeal. 3 Accused has not been represented. Even complainant is absent. The State, respondent no.2, however, is represented. Therefore, the Court appointed Mr. Rohan Sawant, Advocate, as Amicus Curiae. I have to note the contributions of Mr. Sawant has been immense. 4 The stand of the defence has been that accused did not know who Ms. Tasneem Murshedkar, complainant, was and therefore, the allegation that she gave a loan of Rs. 4,50,000/- also is false. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years or with fine which may extend to twice the amount of the cheque, or with both. Explanation to Section 138 provides For the purposes of this section, debt or other liability means a legally enforceable debt or other liability . The key word is legally enforceable debt or other liability. 6 Section 139 of the said Act provides for presumption in favour of holder and it says it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. It is settled law that this presumption is rebuttable and the onus is on the accused to raise the probable defence. The Apex Court in Basalingappa V/s. Mudibasappa (2019) 5 SCC 418 summarized the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. With this settled position in law, let us proceed further. 8 Complainant led evidence of four witnesses, viz., complainant herself as PW-1, Sanjay Alizar as PW-2, one Nitin Janardan Mhatre as PW-3 and one bank employee Shri Liyakat Parkar as PW-4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and she was called in the Rabale Police Station in respect of the complaint. 9 PW-2, Sanjay Alizar, though takes the side of complainant and supports the case of complainant and says complainant paid before him the amount of Rs. 4,50,000/- in installments on different dates, in the cross examination PW-2 says he does not know in how many installments the amount was given by complainant to accused. PW-2 also admits that the cheque issued was of the partnership firm. PW-2 also admits that a complaint has been lodged against him and complainant by accused at Rabale Police Station and to the Commissioner of Police in respect of misuse of cheque in question and Police had also interrogated them. 10 The defence s case was the blank cheque wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of 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 law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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