Dr. Ashokkumar C. Joshi, J
1. This appeal is filed by the appellant â€" original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973
challenging the judgment and order dated 10.06.2014, passed in Criminal Case No. 127 of 2005 by the learned Judicial Magistrate First Class, Prantij,
recording the acquittal.
2. Nutshell facts are that appellant â€" original complainant â€" Rameshkumar Vitthalbhai Patel, lodged a complaint before the Court that the
respondent No. 2 herein had borrowed Rs.20,00,000/- from him for personal use and assured to repay within a month or one and half months and for
the same, he issued a Cheque bearing No. P.698868 dated 17.11.2004 drawn on The Sabarkantha District Central Co-op. Bank Ltd., Prantij Branch
of Account No. 8091, which, the complainant presented in bank, but the same was returned by the bank with an endorsement “Account Closedâ€
and hence, the complainant issued a legal notice dated 07.12.2014 to the respondent No. 2 through his advocate by RPAD and UPC, which though
served upon the respondent No. 2 on 11.12.2014, the respondent No. 2 did not repay the said amount and gave vague reply on 15.12.2004, the
complainant was constrained to file complaint before the competent Court at Prantij under Section 138 of the Negotiable Instruments Act, 1881
(herein after referred to as “the NI Actâ€).
2.1 Upon such complaint being filed and subsequent to service of summons, the respondent No. 2 appeared before the Court. Since the accused did
not plead guilty, trial was proceeded against him. In support, the appellant â€" complainant has produced oral as well as documentary evidence. Vide
impugned judgment and order dated 10.06.2014, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant â€
original complainant has preferred the present appeal.
3. Heard, learned advocate Mr. Yatin Soni for the appellant â€" original complainant, learned advocate Ms. Devangi Solanki for learned advcoate Mr.
N. V. Gandhi for the respondent No. 2 and learned APP Ms. Jirga Jhaveri for the respondent No. 1 â€" State.
3.1 The learned advocate for the appellant â€" original complainant has mainly contended that the learned trial Judge ought to have convicted the
accused inasmuch as the cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented before the bank
with an endorsement “Account Closedâ€. Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque
was issued for discharge of legal liability towards complainant. Further, the signature on the cheque was also not in dispute. In his submission, the
learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory
presumption against him.
3.2 The learned advocate for the appellant further submitted that three conditions to constitute an offence under Section 138 of the NI Act viz. i)
cheque ought to have been presented in the bank within six months or within its validity, ii) holder in due course ought to have make demand by giving
notice in writing within 30 days on receiving information as to return of cheque and iii) drawer of the cheque should have failed to make payment
within 15 days of receipt of such notice, are satisfied and fulfilled by the appellant, however, the learned trial Judge failed to consider this aspect of the
matter in true and proper perspective.
3.3 The learned advocate for the appellant â€" complainant submitted that the cheque in question was issued on 05.10.2004 (PDC), which was dated
17.11.2004 and on that day i.e. 05.10.2004, the account was very much in force and subsequently, the account came to be closed by the respondent
â€" accused, which clearly shows mala fide intention on the part of the respondent â€" accused, however, the learned trial Judge has failed to
appreciate such an important aspect of the matter.
3.4 Moreover, the learned advocate for the appellant â€" complainant submitted that the learned trial Judge ought to have appreciated the fact that out
of Rs.20 lakh, the appellant â€" complainant had borrowed Rs.2 lakh from his uncle Nathanbhai Maganbhai Patel, Rs.2 lakh from Bharatkumar
Narandas and Rs.2 lakh from his friend Arvindbhai Chimanbhai Patel and rest Rs.14 lakh, he had arranged from his personal savings and accordingly,
the amount in question was very well explained, however, the learned trial Judge has disbelieved the same and observed that considering the status of
the appellant â€" complainant as Secretary and his salary of Rs.1,000/- per month as well as the income from agriculture which is maximum Rs.4 lakh,
the same raises doubt as regards lending of such a huge amount to the respondent â€" accused. The learned advocate for the appellant â€
complainant also submitted that the learned trial Judge also erred in observing that the appellant â€" complainant has not disclosed such income before
the Income Tax Department nor has produced any books of accounts and thereby, has failed to appreciate the fact that agriculture income is
exempted under the Income Tax Act.
3.5 The learned advocate for the appellant â€" complainant further submitted that as per the case of the respondent â€" accused, he had issued the
cheque as one Kodarbhai had borrowed Rs.10,000/- because of illness of his son, against security, on behalf of Kodarbhai. However, it cannot be
believed that the respondent â€" accused, who was serving as an Inspector, would give security for such a trivial sum of Rs.10,000/- that too, on
behalf of that Kodarbhai. It is further the case of the appellant â€" complainant that he even did not know this Kodarbhai. Further, it is submitted that
the respondent â€" accused has not examined this witness.
3.6 The learned advocate for the appellant â€" complainant submitted that the learned trial Judge has erred in appreciating the document Exh. 50
inasmuch as, admittedly, the said document was executed by the appellant â€" complainant, however, it was issued for a purpose that when the
appellant was serving as an Inspector, allegations of misappropriation of fund were levelled against him and inquiry was initiated and eventually,
dismissed and as instructed by his head office, he got issued such a certificate from the mandli to the effect that no amount is due and payable by the
respondent â€" accused and accordingly, the appellant had given the certificate. It is submitted that the said certificate was issued on behalf of the
mandli and not in individual capacity and accordingly, the learned trial Judge has materially erred in appreciating the said document.
3.7 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the
accused was proved beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed
an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and
evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of
acquittal.
3.8 In support, the learned advocate for the appellant â€" complainant has relied upon following decisions:
i) Bir Singh v. Mukesh Kumar, 2019 SceJ 222;
ii) Patel Jayantibhai Mafatlal v. State of Gujarat, 2018(0) AIJEL-HC 239654.
4. Per contra, learned advocate Ms. Devangi Solanki for the respondent No. 2 â€" accused, while supporting the impugned judgment and order of the
trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a
conclusion and has acquitted the accused, which is just and proper. She submitted that it is trite law that if two views are possible on the basis of the
evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in
appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower
Court is vitiated by some manifest illegality.
4.1 The learned advocate for the respondent No. 2 â€" accused submitted that for invoking the provisions of Section 138 of the NI Act, the debt or
other liability means a legally enforceable debt or other liability, which the complainant has failed to prove and accordingly, the learned trial Judge has
rightly recorded acquittal. She streneously submitted that at the relevant time, the income of the appellant â€" complainant, admittedly was Rs.1,000/-
per month. Further, he had an agriculture income ranging from Rs.2.5 lakh to Rs.4 lakh per annum, however, there are other family members also and
accordingly, the learned trial Judge has rightly raised suspicion as to saving of such amount by the complainant and lending the huge amount to the
respondent â€" accused. Further, it is the case of the appellant â€" complainant that he had arranged Rs.6 lakh from others, however, not a single
witness has been examined by the appellant in support of his case. Accordingly, when the appellant has failed to discharge the initial burden cast upon
him to prove the legally enforceable debt,the learned trial Judge has rightly concluded in favour of the respondent â€" accused.
4.2 The learned advocate for the respondent No. 2 has heavily submitted that the ingredients of the offence alleged against the accused are not
proved beyond reasonable doubt and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against him.
Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be
dismissed.
4.3 In support, the learned advocate for the respondent â€" accused has relied upon following decisions:
i) Anss Rajashekar v. Augustus Jeba Ananth, 2019 (2) Scale 548;
ii) K. Subramani v. K. Damodara Naidu.
5. The Court has also heard the learned APP for the respondent No. 1 â€" State.
6. Heard, the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material
on record.
6.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by
catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is
founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption
of innocence is available to him 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, the accused having secured his acquittal, the presumption of his innocence is further
reaffirmed and strengthened by the trial Court.
6.2 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of
acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at
would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.
6.3 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court
below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is
perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate
Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the
accused is connected with the commission of the crime with which he is charged.
6.4 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court
has observed that, “The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is
acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as
a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the
High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long
drawn out criminal trial are not again unnecessarily dragged to the High Courtâ€.
6.5 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020
SCC OnLine SC 988 the Apex Court has observed as under:
“9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal
under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial
court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the
appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on
record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into
consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by
the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v.
State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v.
Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla
Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) “… the High Court should and will
always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses.â€
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of
Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan
v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)
“(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’,
‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him 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, the accused having secured his acquittal, the presumption of his innocence
is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.â€
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases
in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent.
The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching
the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374,
para 20) “20. … an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the
finger towards the accused.â€
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering
with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) “(i) The High Court’s decision is based on
totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of
acquittal.†A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment
under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a
routine manner where the other view is possible should be avoided, unless there are good reasons for interference.â€
9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid
decision, which reads as under:
“20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of
evidenceâ€, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)
4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE
1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v.
State of A.P (2009) 10 SCC 636).†(emphasis supplied)
9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a
decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as
perverse and the findings would not be interfered with.
9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of
Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court
right from 1952 onwards. In paragraph 31, it is observed and held as under:
“31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the
High Court interfered with the order of acquittal passed by the learned trial court on re-appreciation of the entire evidence on record. However, the
High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the
judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)
“10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence
independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same
were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an
absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.â€
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the
accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the
approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the
order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order
of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction
passed by the High Court.
While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)
“8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that
the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz.
first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions
arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-
considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under
appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court
which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the
evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free
from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate
court’s judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer
from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the
judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having
regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.â€
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the
learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an
order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions
Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was
unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the
accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence
of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This
Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High
Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) “5. It has been argued by the
learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere
appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our
opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of
acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to
come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence
have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case
of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial
court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the
order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have
been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P
AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in
reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful
doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the
High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.â€
(emphasis supplied).â€
7. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks as under:
“138. Dishonour of cheque for insufficiency, etc., of funds in the account. â€" Where any cheque drawn by a person on an account maintained by
him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt
or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour
the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to
have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be
extended to one year.
Provided that nothing contained in this section shall apply unlessâ€
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity,
whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving
a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of the said notice.
Explanation.â€" For the purposes of this section, “debt or other liability†means a legally enforceable debt or other liability.]
7.1 Thus, in the case under NI Act, the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of
money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. Further, explanation to this
section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of
the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the
complainant has failed to prove otherwise. It is observed by the learned trial Judge that in the present case, the complainant has not produced any
documentary evidence to prove his case and hence, it cannot be believed that the complainant had a legal dues from the respondent â€" accused. In
the overall facts and circumstances of the case, the learned trial Judge has come to the conclusion that the debt cannot be said to be the legally
enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt.
7.2 Further, under Sections 118(a) and 139 of the NI Act, there are provisions as regards presumption. At this juncture, a beneficial reference may be
made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (2019) 5 SCC 418, wherein, the Court has observed
as under:
“23. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles
enumerated by this Court in following manner:
23.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or
other liability.
23.2. The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of
proof for rebutting the presumption is that of preponderance of probabilities.
23.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the 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.
23.4. That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not
a persuasive burden.
23.5. It is not necessary for the Accused to come in the witness box to support his defence.â€
7.3 Thus, the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of
proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, considering the evidence on record, it is observed by
the learned trial Judge that, in his cross-examination, the complainant has stated that he had given Rs.20 lakh to the accused, out of which, he had
arranged Rs.2 lakh from Nathabhai Maganbhai Patel, Rs.2 lakh from Bharatkumar Narandas Patel and Rs.2 lakh from his friend Arvindbhai
Chimanbhai Patel. Thus, he had taken an amount of Rs.6 lakh from others, however, to prove such a fact, the complainant has not examined any of
above witnesses. (para 15 of the impugned judgment and order). It is further observed that when from inception, it is the case of the accused that the
outstanding amount is not Rs.20 lakh, the complainant ought to have proved as to how he had arranged such an amount. It is further observed by the
learned trial Judge in para 16 that, the complainant, in his cross-examination, has stated that he had given rest amount of Rs.14 lakh from his personal
savings, however, the complainant has not produced anything on record to substantiate the said fact. It is further observed that the complainant has
stated that his income was Rs.1,000/- per month and in the circumstance, it is doubtful as to how come he could lend such a big amount (of Rs.20
lakh) to the accused. It is further observed by the learned trial Judge that to explain the same, the complainant has stated that he had annual
agriculture income in the sum of Rs.2.5 lakh to Rs.4 lakh, however, even if it is believed that the complainant had maximum income of Rs.4 lakh, then
too, it cannot be believed that the complainant could be able to save all his earnings from the agriculture. Further, it is not the income of the
complainant only and his family members do also have share in the said income. Further, the complainant has also not stated as to whether the said
amount was deposited in the bank or was kept at his home only. In para 17, it is observed that the complainant has not made any agreement/writing as
to the lending of Rs.20 lakh to the accused. Referring the document at Exh. 50, the learned trial Judge has observed in para 18 of the impugned
judgment that it is specifically mentioned therein that the accused had never taken, either from the mandli or from the complainant personally, any
amount nor any outstanding was there from the accused. It is also observed by the learned trial Judge that if at all the said certificate was issued in the
capacity of Secretary of the mandli only, the complainant could have made mention of the mandli only and not as regards any personal transactions.
Thus, considering all these aspects of the matter, the learned trial Judge has come to a conclusion that the accused has succeeded in rebutting the
presumption, showing preponderance of probability.
7.4 On re-appreciation and reevaluation of the oral as well as the documentary evidence on record, following aspects have been weighed by this
Court:
i) the complainant stated to have given Rs.20 lakh to the respondent â€" accused, however, except bare words, there is nothing on record to show that
such a big amount was given to the respondent â€" accused;
ii) there is also nothing on record to show as to how the complainant arranged the said amount. It is the case of the complainant that he had taken
Rs.2 lakh each from three different persons (totalling to Rs.6 lakh), however, admittedly, not a single witness, to substantiate the said fact, has been
examined by the complainant;
iii) indisputably, the complainant was serving as a Secretary in the mandli and his monthly income was Rs.1,000/-. Further, he had agriculture income
to the tune of Rs.2.5 lakh to Rs.4 lakh per annum, however, share of other family members is not denied in the said agriculture income nor can it be
said that the whole income was being kept/saved by the complainant;
iv) as per the case of the respondent â€" accused, he had given the cheque towards security on behalf of one Kodarbhai that too, for an amount of
Rs.10,000/- only;
v) receipt of legal notice from the complainant is admitted by the respondent â€" accused and he had also replied to the said notice and start from the
beginning, his case is consistent that he had not taken such amount from the complainant;
vi) no justifiable details qua income of the complainant is there on record, neither any documentary evidence is produced on record;
vii) complainant himself, in the Certificate produced on record, Exh. 50, has clearly stated that the respondent â€" accused has never made any
financial transaction, either with the mandli nor with him personally and on the said date, no amount was due from the respondent â€" accused;
viii) the cheque in question was dated 17.11.2004, whereas, admittedly, the account in question was closed on 28.10.2004. Further, the complainant
has failed to prove that the respondent had given post dated cheque on 05.10.2004 towards his legal dues;
ix) presumption in favour of the complainant is rebuttable and standard of proof is preponderance of probability, which the respondent appears to have
successfully shown;
x) there were allegations of misappropriation against the complainant and was dismissed from service.
7.5 Thus, on re-appreciation and reevaluation of the oral as well as the documentary evidence on record, it transpires that the complainant has failed to
prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone
through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered evidence on record and come to
such a conclusion.
8. The Court has gone through the decisions relied upon by the learned advocate for the appellant and the respondent â€" accused. In the decision in
Bir Singh (supra), the Court has held that, “Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque
received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the
presumption is rebuttable by proving to the contrary. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the
onus on the accused to prove by cogent evidence that there was no debt or liability.
Mere denial or rebuttal by the accused was not enoughâ€. In the case on hand, from inception, it was the case of the respondent â€" accused that he
had not taken any such amount from the appellant â€" complainant. Even he has replied the legal notice of the complainant in which also, he has taken
such a stand, which is consistent. Further, the complainant is not in a position to explain with any cogent evidence as to the arrangement of such a big
amount, except bare words. Thus, the respondent No. 1 appears to have rebutted the presumption under the provisions of Section 139 of the NI Act
and that, the complainant has failed to discharge the initial burden of proving the legally enforceable debt. Thus, the aforesaid decision also, would be
of no help to the complainant.
8.1 So far as the decision of the Coordinate Bench of this Court in Patel Jayantibhai Mafatlal (supra) is concerned, in the said case, it is observed by
the Court that the complainant had succeeded in discharging the burden that there exists a legally enforceable debt or liability, whereas, in the case on
hand, the complainant has failed to prove the legally enforceable debt and accordingly, the said decision would be of no help to the appellant â€
complainant.
9. The learned advocate for the respondent â€" accused has also relied upon the aforementioned decisions. If the decision in K. Subramani (supra) is
referred to, the Apex Court has observed in the said decision that, “On a consideration of entire oral and documentary evidence the trial Court
came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is
legally recoverable debt payable by the accused to himâ€. The Court eventually restored the acquittal order. In the case on hand also, the complainant
has failed to prove the source of income so also the legally recoverable debt. Admittedly, the salary of the complainant was of Rs.1,000/- per month
only, and had agriculture income of Rs.2.5 to Rs.4 lakh per annum, which was the income of family. It is further the case of the complainant that he
had borrowed Rs.6 lakh from others, however, to prove such a fact, he has not examined any witness nor has he produced any evidence in support of
his case that Rs.14 lakh had been managed by him from his savings. Further, as per the complainant himself, in the certificate, Exh. 50 issued by him,
there was no outstanding from the respondent â€" accused, either of mandli or in personal capacity and accordingly, the respondent â€" accused has
succeeded in raising probable defence.
9.1 In the latest decision of the Apex Court in Anss Rajashekar (supra), as relied by the learned advocate for the respondent â€" accused, the Court
observed that, “Besides what has been set out above, an important facet in the matter was that the complainant failed to establish the source of
funds which he is alleged to have utilized for the disbursal of the loan of Rs.15 lakhs to the appellantâ€. It is further observed that, “His defence
that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of
acquittal passed by the first appellant Court was justifiedâ€. Accordingly, the Court restored the order of acquittal. In the case on hand also, the
complainant has failed to discharge the initial burden of proving the legally enforceable debt. Moreover, the complainant has also failed to establish the
source of funds with cogent evidence. Further, as said in the earlier part of the judgment, the respondent has successfully raised the probable defence.
10. At this juncture, it would be apt to refer to a decision of the Apex Court in Krishna Janardhan Bhat v. Dattaraya G. Hegde, passed in Appeal
(Cri.) 518 of 2006 on 11.01.2008, wherein the Court has observed thus:
“The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court
of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not
matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued
for discharge of any debt or other liabilityâ€.
10.1 Thus, the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque that the same has been
issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under the said section.
Nonetheless, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt.
10.2 Yet in another decision in P. Venugopal v. Madan P. Sarathi, MANU/SC/8264/2008 it is held by the Apex Court that, ""Initial burden on
complainant to prove grant of loan. The presumption raised in favour of holder of cheque must be confined to matters covered thereby and does not
extend to extent that cheque was issued for discharge of debt or liability which is required to be proved by complainant."" In the instant case, when the
complainant has failed to fulfill the initial burden of proving the legally enforceable debt and as also the source of funds, the presumption against the
respondent â€" accused is justifiably rebutted.
10.3 Further, in the decision in Vijay v. Laxman and Ors., MANU/SC/0125/2013, it is held by the Apex Court that ""Acquittal of Accused shall be
sustained, if prosecution has failed to make out case against Accused.
11. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the complainant has failed to bring home the charge
against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, the
appeal fails and is dismissed accordingly. Impugned judgment and order dated 10.06.2014, passed in Criminal Case No. 127 of 2005 by the learned
Judicial Magistrate First Class, Prantij, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P, if received, be transmitted
back forthwith.
