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TMI Blog2024 (10) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the notices were issued twice. Hence, the judgment passed by the learned First Appellate Court is not sustainable. Since, the learned First Appellate Court has not touched the other grounds challenging the judgment and order passed by the learned Trial Court, therefore, the matter is required to be remitted to the learned First Appellate Court for its afresh disposal as per the law. This is also necessary because the scope of appeal against the conviction is wider than the scope of appeal against the acquittal and it is not permissible for this Court to simply affirm the judgment of the learned Trial Court when the accused had no opportunity to get the finding on the points raised by him before learned First Appellate Court. The present appeal is allowed and the judgment passed by the learned Sessions Judge, Hamirpur, is ordered to be set aside. The matter is remitted to the Court of learned Sessions Judge, Hamirpur, for its afresh disposal as per law. - Hon ble Mr Justice Rakesh Kainthla, Judge For the Appellant : Mr. P. K. Verma , Advocate vice Mr. K.B. Khajuria, Advocate For the Respondent : Mr. Rohit Thakur , Advocate vice Mr. Parav Sharma , Advocate ORDER Rakesh Kainthla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirety. He stated that the cheque was handed over by him to the complainant as a security and a false complaint was filed against him. The accused initially stated that he wanted to lead evidence in defence, but no evidence was led subsequently. 6. The learned Trial Court held that the issuance of a cheque was undisputed. The accused claimed that he had issued a blank cheque as security to the complainant, but he failed to prove this fact by providing satisfactory evidence. A cheque carries with it a presumption of consideration and mere denial is insufficient to rebut this presumption. The cheque was dishonoured due to insufficient funds. A notice issued to the accused was returned undelivered and is deemed to be served. The accused failed to pay the amount despite deemed receipt of the notice. Hence, he was convictedof the commission of an offence punishable under Section 138 of N.I.Act and was sentenced to undergo simple imprisonment for six months,pay a fine of ₹2000/- and in default of payment of the fine to further undergo simple imprisonment for one month. The accused was also directed to pay a compensation of ₹2,40,000/-to the complainant. 7. Being aggrieved f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed that the present appeal be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The present appeal is filed against a judgment of acquittal. It was laid down by the Hon ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that an appeal against acquittal cannot be allowed merely on the difference of opinion. It was observed: 25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened, and a higher threshold is expected to rebut the same in appeal. 26. No doubt, an order of acquittal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .N., (2002) 9 SCC 639: 2003 SCC (L S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus : (SCC p. 643, para 9) 9. We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeals against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view, and even if by any stretch of the imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal. 29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or any other similar reason. There is, in our opinion, no real or qualitative difference between a case where default is committed, and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. ***** 35. In the result, we overrule the decision in the Sadanandan case [(1998) 6 SCC 514: 1998 SCC (Cri) 1471] and hold that the prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly. The appeals shall now be listed before the regular Bench for hearing and disposal in light of the observations made above. 16. This position was reiterated in Kamlesh Kumar (supra), and it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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