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TMI Blog2025 (4) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... brevity. 2. The brief facts culled out from the memo of the present appeal as well as the impugned judgment and order and paper book filed by the appellant are as under: 2.1. The complainant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a loan from the complainant and the accused issued cheque No.119703 for an amount of 2,18,200/- dated 08.05.2001 Rs. 2,18,200/- dated 08.05.2001 from his account with from his account with Bank of India, Mahesana Branch. The complainant deposited the cheque in his bank and the cheque was dishonored and returned with the reason mentioned in the return memo as "Funds Insufficient". The complainant sent the statutory demand notice to the accused and no payment was made. The complainant filed the criminal complaint before the Court of the Judicial Magistrate First Class, Unjha under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 501 of 2001. 2.2. The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 04 and the evidence of the complainant was taken on record. The complainant was examined on oath and 10 documenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court regarding scope of interference in acquittal appeals in the case of Constable 907 Surendra Singh & Anr. Vs State of Uttarakhand reported in 2025 0 INSC 114 the Apex Court has observed in Para 11 and 12 as under: "11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka, (2024) 8 SCC 149 a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: 38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) "29. After referring to a catena of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378 CrPC as follows : (SCC p. 584, para 8) 8. XXX XXX XXX 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." 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 8.1. The Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be the sum represented on the cheque; iii. When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted; iv. The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and v. The notice demanding the payment of the 'said amount of money' has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would not be the amount represented on the cheque and the accused cannot be deemed to have committed an offence under Section 138 of the N I Act. 10. The learned Trial Court has appreciated all the evidence produced by both the parties and has concluded that the complainant has not proved the legally enforceable debt as the amount mentioned in the cheque in question. The learned Trial Court has concluded that from evidence on record the complainant has failed to prove his case and the amount mentioned in the cheque is more than the loan amount and the accused has successfully rebutted the presumption under Section 139 of the NI Act. The accused had created a reasonable doubt and the complainant has failed to produce reliable and cogent evidence on record about the legally recoverable debt from the accused and has not proved his case beyond reasonable doubt. In light of the above observation, the learned Trial Court has passed the impugned judgment and order of acquittal, which is just and proper and does not require any interference of this Court. 11. Consequently, the present appeal under Section 378(4) of the Code of Criminal Procedure, 1973 fails and is hereby dismissed. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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