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TMI Blog2025 (4) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of the Negotiable Instruments Act, 1881 (for short "the said Act") and sentenced him to suffer S.I. for 1 year and imposed fine of Rs. 87,46,713/- and in default to suffer S.I for 3 months. Accused being aggrieved filed Criminal Appeal No.177 of 2010 before Sessions Court. By judgment dated 14.05.2015, his Appeal was allowed and judgment dated 08.03.2010 was quashed and set aside and the case was remanded back to Trial Court for reconsideration and rehearing with a direction to decide facts in issue about the existence of legal liability or legally enforceable debt against the Accused at the time of issuing the cheques. 5. Case on remand was heard by Trial Court and by judgment dated 01.10.2015 Accused is acquitted of the offence punishable under Section 138 of said Act. 6. This judgment of acquittal is under challenge in the present Appeal. 7. At the outset, it would be worthwhile to note the scope of Appeal against Acquittal and the law with regard to scope of interference by Appellate Court in an Appeal against acquittal. A recent decision of the Division Bench of this Court while deciding Criminal Appeal No.555 of 2024 against Acquittal in the case of ABC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial court and so, the fact that the accused person is entitled for the benefit of a reasonable doubts will always be present in the mind of the High Court when its deals with the merits of the case. As an appellate court the High Court is generally slow in disturbing the finding of fact recorded by the trial court particularly when the said finding is based on an appreciation of oral evidence because the trial court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Sheo Swarup, the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial". Therefore, the test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715 and Harbans Singh v. State of Punjab AIR 1962 SC 439 and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Therefore, the question which we have to ask ourselves in the present appeals is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial court was erroneous. In answering this question, we would, no doubt, consider the salient and broad features of the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgment is as under: "70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1), the Apex Court has held that the Appellate Court has all necessary powers to re-evaluate the evidence led before the trial Court as well as the conclusions arrived at and that it is the duty of the Court to specify the compelling and substantial reasons for reversing the order of acquittal passed by the trial Court. The reasons or reversal have to be cogent and adequate. 17. Thus, the law on the issue i.e. scope for interference in an appeal against acquittal can very broadly be summarized as follows; that in exceptional cases where there are compelling and substantial reasons; and where the judgment under appeal is found to be perverse, clearly unreasonable, manifestly erroneous, contrary to the evidence on record, or contrary to law, and the findings have been arrived at, by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material or is 'against the weight of evidence' or if the finding so outrageously defies logic as to suffer from the vice of irrationality, the Appellate Court can interfere with the order of acquittal. However, whilst doing so, the Court has to bear in mind the presumption of innocence of the accused and fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments exhibited as Exhibits - "P2 to P4" being handwritten note books maintained by Complainant in his own handwriting and Exhibit "P11" to Exhibit "P13" being computer printouts prepared by Complainant. 11. Correspondence of Complainant namely Notice dated 30.07.1996 is below Exhibit - "P6", reply thereto dated 09.08.1996 is below Exhibit- "P8", rejoinder dated 20.09.1996 is below Exhibit- "P10", Computer statements prepared by Complainant are below Exhibit- "P11", "P12", and "P13" and list of borrowers prepared by Complainant below Exhibit- "P14". These 6 are the main exhibits which are referred to and relied upon by Mr. Kurle while making his submissions, to persuade me to appreciate the same in favour of Complainant's case. Accused in his defence has relied upon the documents/exhibits submitted by Complainant and in addition thereto five (5) further documents are placed on record by him. In short, the Trial Court has accepted the defence of Accused that there is no evidence about the probability that Accused might have raised loan through Complainant from third parties and therefore held that the twin cheques were not issued towards any legally enforceable debt or liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have impressed upon him to understand the fact that the said judgment stands quashed and set aside by Sessions Court in Appeal by judgment dated 14.05.2015 with a direction to remand the matter back for reconsideration by Trial Court and to determine and decide the facts in issue about existence of the legal liability or legally enforceable debt against Accused at the time of issuing the twin cheques. Complainant has also led fresh additional evidence in the form of Exhibit "P52" thereafter. I therefore asked Mr. Kurle to take me through the impugned judgment dated 01.10.2015 passed by the Trial Court after the above remand and argue his case qua the evidence placed on record and make submissions for challenging and setting aside of the same. I state this because the order of remand dated 14.05.2015 passed by Sessions Court in Criminal Appeal No.177 of 2010 had not only set aside the judgment dated 08.03.2010 but also framed a specific issue to be decided by the Trial Court as delineated herein above. Hence in my opinion, it would be inappropriate to consider the previous judgement dated 08.03.2010 of the Trial Court while deciding this appeal. 14.2. He would submit that Complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibits "P-2" to "P- 4". 14.7. He would submit that apart from the above notebooks produced in Court Complainant did not maintain any other record of the transactions. 14.8. He would submit that based on oral and documentary evidence on record, Complainant has proven his case beyond all reasonable doubts and has established a legally enforceable debt and liability under the following eleven (11) heads as stated in Exhibit - "P13", which is the Statement of claim prepared by him. Exhibit "P14" is the list of persons who invested with the Accused at the behest of Complainant. He would submit that Exhibit - "P13" refers to 13 heads of payment. He would submit that the first claim of Complainant is for the is amount of Rs. 8,63,800/- paid by Complainant to several parties as repayment of loan which was arranged by him from such third parties. He would submit that names of such 18 third parties is stated in the list at Exhibit - "P11". He would submit that this claim is prepared on the basis of ledger account maintained by Complainant in his personal notebooks which are placed on record in evidence as Exhibits -"P2", "P3" and "P4". He would submit that out of eighteen (18) persons A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,571/- towards outstanding amount of sub-brokerage payable to Complainant as he was entitled to 0.5 percent of the total annual turnover of the business of Accused. 14.17. The tenth claim is of Rs. 8,275/- for out of pocket expenses that Accused had incurred. 14.18. The eleventh claim is of Rs. 1,67,700/- which is under the heading of 'Interest Claim' and is towards interest for funds arranged by Complainant from persons enlisted in Exhibit "P11" 14.19. He would submit that Exhibit "P13" is prepared by Complainant as per settlement arrived between him and Accused pursuant to which the subject 2 cheques were given to him by Accused for satisfaction of the above liabilities. He would submit that the evidence adduced by Complainant if appreciated would entitle him to the above claim in its entirety. 14.20. He would submit that the learned Trial Court has not assigned any reasons in the order regarding legally enforceable debt and liability of Accused not having being proved by Complainant. He would submit that merely by stating that entries in Exhibits: "P2", "P3" and "P4" are not legible and are scored of, the Trial Court has not appreciated the said entries which clearly match w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used regarding securities cheque in 313 statement at appeal paperbook 185) and Exhibit "P38" to Exhibit "P40" (securities cheque and LIC policy surrender receipt), and after examining the same in its proper perspective should have been allowed. He would submit that evidence of defence witnesses namely DW-6 and DW-7 who are two parties who dealt with the Complainant clearly supports Complainant's case and is against the defence raised by Accused. 14.26. He would submit that while passing the impugned judgement the Trial Court has completely disregarded the evidence and liability of PW-4 to PW-8 in its entirety as these persons dealt with the Accused through the Complainant. He would therefore urge the Court to hold that Complainant has proved his case beyond reasonable doubt and Accused deserves to be punished in the peculiar facts of this case and evidence for the liability and legally enforceable debt due and payable by Accused to Complainant stands proved. Hence he would pray for setting aside of the impugned judgement of the Trial Court dated 01.10.2015 and allowing the Complainant's claim under all eleven (11) heads of payment as proved by the Complainant. 14.27. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plit up. He would submit that the details of the name of drawee was also not inserted in Exhibit "P1", as the client was supposed to provide the same. Since the said details were not provided, Exhibit "P1" i.e. two signed cheques remained in custody of Complainant who was managing all office affairs. He would submit that Complainant misused the trust reposed in him, since he was handling the entire work of investment and banking of the firm of Accused for several years and fraudulently inserted his name on the two cheques and claimed them towards his outstanding liability. He would submit that never once did the Complainant demand any of the alleged claim from Accused when he was in service of the Accused. 16. He would submit that in the remand order by the Sessions Judge Complainant was required to prove existence of legal liability or legally enforceable debt. A finding was categorically returned therein that there may be some more evidence which may be available on this issue. He would submit that in addition to the evidence already available on record, all the that Complainant placed before the Court as additional evidence is the document below Exhibit "P52". He would submit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Plaintiff in evidence are prepared by him and none of the said lists had been proved in evidence and therefore the findings returned by the learned Trial Court deserve to be accepted as the burden was on the Complainant to prove that the amount stated in the two cheques was in respect of a legally enforceable debt due and payable by the Accused to the Complainant. He has drawn by specific attention to the cross examination of the Complainant which was conducted on 24.07.2015. This was the concluding part of his cross examination. It is appended at page nos. 4 and 8 of the paperbook He would submit that Complainant has admitted the fact that Exhibit "P52" does not add up to Rs. 49,83,836/-. He would submit that apart from Exhibit "P- 52" another document namely Exhibit "P13" is the only other document which is a ledger extract printed by the Complainant for the claim stated therein for the two cheque amount. However, thereafter he has immediately admitted the fact that Exhibit "P13" is an extract printed by him during the trial and it did not exist prior to the trial. He has also admitted the fact that Exhibit "P13" is not signed by the Accused nor there is any document to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kale, in support of his above submissions, has referred to and relied upon two decisions of the Supreme Court in the case of (i) Alamelu & Anr Vs. State represented by Inspector of Police (Criminal Appeal No. 1053 of 2009) and (ii) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54. He would submit that argument of the Complainant relating to presumption to be regarded under Section 139 of the said Act cannot be accepted in view of the fact that the said presumption is rebuttable and has been adequately rebutted. 20. He would submit that presumption of innocence as a human right and the doctrine of reverse burden introduced by Section 139 of the said Act should be considered in view of the evidence placed before the Court. He would submit that this is not a case where the Accused has not stepped into the witness box or evaded answering his defence. He would submit that Accused in the present case has raised the defence of fraud right at the inception stage while denying the contents of Complainant's legal Notice issued under Section 138 of the said Act. 21. He would submit that substantial, cogent and pointed evidence has been led by the Accused to discharge his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Suit has been dismissed by this Court on 13.10.1999 for non- prosecution. It may not have bearing on determination of the present case. The above fact is stated only to show the conduct of the Complainant. 25. The present appeal is dependent upon the strength of the evidence of the Complainant to prove the legally enforceable debt. In the present case it is seen that substantial witness action is led by both sides. What is crucial to be noted is the fact that claim of Complainant is for a substantial tenure of time on the ground that he brought good amount of business to the Accused and was to get 0.5 percent of the total turnover in addition to Rs. 3,000/- per month as salary. Complainant was employee of Accused and his firm, Meera Investments is an admitted fact. The most important clinching issue is that there is no evidence / agreement between the parties i.e. Complainant and Accused nor Complainant and the third parties who invested their monies with the Accused which were been brought / invested at the behest of Complainant. In this background the Complainant's case cannot be believed on the basis of his mere oral evidence. He was offered two chances in the trial. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds. That letter has no nexus with the Complainant. The Complainant does not get any right to assume the role of a recovery agent on behalf of PW-2 or PW-4 in the absence of any agreement between the Complainant, Accused and the third parties. 28. Next it is seen that PW-5 K. Ramalingam is the relative of the Complainant who invested Rs. 50,000/- through Complainant with the Accused on 24.12.1990. Admittedly he received interest at the rate of 3 percent on his investment up to February 1995 for five years. This is Complainant's case. Similarly PW-6 T. Ramaswami, Complainant's younger brother, invested Rs. 1,50,000/- in cash with Accused at the behest of the Complainant in 1989. He also received returns in the form of interest at the rate of 2 to 2.5 percent for several years. In the case of PW5 and PW6, Complainant has alleged to have paid them their investment amount with the Accused when they demanded it from him. Once again it is seen that there is no cause of action for the Complainant to pay the said amount to PW5 and PW6 on behalf of the Accused without intimating the Accused. Accused had never endorsed the decision of Complainant to pay the said amounts. Accused is not priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his case of any legally enforceable debt under any of the eleven (11) heads. 31. It is seen that the entire case of the Complainant is based on Exhibit "P11" to Exhibit "P13" which are the computer statements prepared by the Complainant himself. These statements are clearly prepared by the Complainant after filing of the complaint during the course of Trial. According to Complainant, these entries are based on the diary entries made by him in Exhibit "P2" to Exhibit "P4". The said exhibits namely Exhibit "P11" to Exhibit "P13" are electronic evidence of printouts from the computer which are not proved in evidence under Sections 65A and 65B of the Indian Evidence Act which lay down proof of evidence of electronic record. Thus, case of the Complainant cannot be accepted due to this one more reason which corroborates the evidence on record. 32. It is seen that Complainant issued the legal notice under Section 138 in the year 1996 raising the demand of Rs. 49,83,836/- under the two cheques. It is seen that immediately thereafter in the reply to the said notice Accused raises his defense of the issue of the two cheques by fraudulent means. Complainant thereafter issued a rejoinder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence led by Complainant merely identifies eleven (11) heads of payment. When the remand was specifically made by the Sessions judge, the only additional evidence led by the Complainant to prove the legally enforceable debt is Exhibit "P52" pertaining to outstanding of the amount of Rs. 1,76,571/- towards sub-brokerage and nothing more. Even the statement on the face of it cannot be accepted without evidence as it is prepared by him subsequently. 37. There is no evidence whatsoever led by the Complainant to prove the outstanding liability under the alleged eleven (11) heads of payment and once this is the case, it cannot be said that Complainant has proved his case beyond reasonable doubt. 38. In view of the above observations and findings, I am in complete agreement with the findings returned by the learned Trial Court in paragraphs Nos.28, 30 and 31 of the judgement of the Trial Court. On the basis of material on record, it cannot be said that Complainant has proved his case beyond all reasonable doubts. The burden on the Accused to prove his case only to the extent of preponderance of probability is clearly proved in the present case even though there may be a probabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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