Complainant appealed against acquittal in a cheque dishonour case under Section 138 NI Act. The High Court held contradictory versions regarding consideration rebutted Section 139's presumption and signatures on the cheque were doubtful, so no interference was warranted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No.(2024:HHC:5195)
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.257 of 2015 Reserved on 27.06.2024 Date of Decision:- 16.07.2024
Tarsem Lal …...Appellant Versus Rajender Kumar …....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge . Whether approved for reporting?1 No. For the Appellant : Mr. Vinod Thakur, Advocate. For Respondent : Mr. Umesh Kanwar, Advocate.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment dated 28.02.2015 passed by learned Judicial Magistrate First Class Court No.2, Ghumarwin, District, Bilaspur, H.P. (JMFC-II), vide which the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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receipt of the notice. Hence, the complaint was filed against the accused for taking action as per the law.
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accused had issued the cheque to repay the amount advanced to him. A writing was proved, in which it was mentioned that the cheque was issued towards the payment of the Khair Trees. Thus, there were different versions regarding the consideration and the presumption contained in Section 139 of the NI Act stood rebutted by such evidence. Hence, the accused was acquitted.
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and the judgment passed by the learned Trial Court be set aside.
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rely upon the cross-examination of the complainant’s witnesses. Learned Trial Court was justified in holding that the presumptions stood rebutted because of the contradictory evidence regarding consideration. Hence, he prayed that the present appeal be dismissed.
under: -
“ Scope of Appeal filed against the Acquittal:
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13. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429 , wherein it was
held:-
“15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police(2012) 10 SCC 383 whereunder it came to be held as follows:
“ 33. The expressions “erroneous”, “wrong” and “possible” are defined in the Oxford English Dictionary in the following terms:
“ erroneous .— wrong; incorrect.
wrong .—(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
possible .—(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.”
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has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.”
16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636: AIR 2010 SC 589 it has been held by this Court as under:
“14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has
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been found perverse by the High Court was in fact so.
17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed.
18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227 , it has been held by the Privy Council as under :
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:
19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka ( 2007) 4 SCC 415 to the following effect:
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“42. From the above decisions, in our considered view, the following general principles regarding the powers of the 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 Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and 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 a 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
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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.”
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related to him, therefore, he would not take anything from the accused. The accused told him that he would pay ₹5,0006,000/-, as he had to engage someone as Munshi. The complainant was taking care of the labour. The accused had to pay the money which was handed over to him by the complainant as a loan. He denied portions ‘A’ to ‘A’ and ‘B’ to ‘B’ of the notice as incorrect. He stated that the statement made by him in the Court regarding the advance of money was correct and the previous statement regarding the payment of commission was not written at his instance.
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Since the complainant has admitted the execution and authenticity of the document; hence the same can be read against him. This document reads that the accused had to pay money regarding the Khair Trees taken from various persons. He had issued different cheques to Jaggu Ram, Tarsem Singh complainant, Bihari Lal and Rajesh Kumar. It shows that the accused had made the payment of the Khair Trees taken from the complainant. Significantly, the complainant nowhere stated that he had sold any Khair Trees to the accused or that the accused was liable to pay money on account of the sale of Khair Trees to the complainant. The complainant stated in his complaint that the accused had also issued the cheques to Jaggu Ram, Bihari Lal and Rajesh Kumar beside him, which is in accordance with the recitals made in the document (Mark X-2,) wherein a reference has been made to the payment of cheques to the complainant, Jaggu Ram, Bihari Lal and Rajesh Kumar.
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contradictory about the consideration, the accused is entitled to an acquittal. It was observed:
“9. It would now be necessary to analyze the statement of the appellant/complainant. In the complaint, it has been averred that she had given a family loan of ₹ 5 lakhs to the respondent and out of the aforesaid amount, ₹ 2 lakhs had been returned to her. The cheque was only issued with respect to the balance amount of ₹ 3 lakhs. During the cross examination, however, a different stand was taken by the appellant/complainant and it was deposed that the appellant wanted to purchase a flat from the respondent and the money was given by her for the aforesaid purpose. She has further stated that the total cost of the flat was ₹ 5 lakhs. She did not know as to where the flat was situated. There was no specification regarding the year, date, time and place of giving of the aforesaid ₹ 5 lakhs as loan. There are apparent contradictions in the statement made in the complaint petition and the deposition of the appellant. With respect to the source of the money, the appellant stated that half the amount was from her income from the tuition whereas the rest of the amount was her savings. She had also taken some amount, according to her deposition, from Dr. Virender Singh (CW-2). She has admitting to having accepted a cheque of ₹ 50,000/- in her and her husband's name.
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money was given for the purchase of a flat, where was the question of the return of ₹ 2 lakhs in the first instance and ultimately the return of the entire amount? If the agreement to purchase the flat did not materialize, requiring the respondent to repay the amount, this fact had necessarily to be proved by the appellant/complainant which she has not done.
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"25. 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 the following manner:
25.1. Once the execution of the cheque is admitted Section 139 of the Act mandates a
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presumption that the cheque was for the discharge of any debt or other liability.
25.2. 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 the preponderance of probabilities.
25.3. 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.
25.4. 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.
25.5. It is not necessary for the accused to come into the witness box to support his defence.”
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endorsement that drawer signatures were incomplete or differed as well as insufficient funds. Om Prakash (DW-1) also stated that the cheque was dishonoured due to differences in signatures. He admitted in his cross-examination that the amount was insufficient and this was also a reason for dishonouring the cheque. The statements of these witnesses show that the signatures on the cheque were different from the specimen signatures of the accused in the Bank. Therefore, it cannot be said that the accused had admitted his signatures on the cheque or that the cheque contained the signatures of the accused. Hence, in these circumstances, the presumption under Section 139 will not be attracted.
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16th July 2024 (Rakesh Kainthla) (Manish) Judge
2 issues framed by the court
Whether contradictions in the complainant's evidence regarding consideration rebutted the presumption under Section 139 NI Act
Whether an appeal against acquittal under Section 138 NI Act could be allowed despite a possible view taken by the trial court
Colour shows how this judgement treated each authority
Satyaveer Singh v. SurajDistinguished¶23
Satyaveer Singh Vs. Suraj Criminal Appeal No.556 of 2016 decided on 12.01.2024
Jafarudheen v. State of KeralaRelied on¶12
Jafarudheen v. State of Kerala, (2022) 8 SCC 440 · Who else cites this
Siju Kurian v. State of KarnatakaRelied on¶13
Siju Kurian versus State of Karnataka 2023 online SCC 429 · Who else cites this
Murugesan v. State through the Inspector of PoliceExplained
Murugesan V. State through the Inspector of police(2012) 10 SCC 383 · Who else cites this
Gamini Bala Koteswara Rao v. State of Andhra PradeshExplained
Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636: AIR 2010 SC 589 · Who else cites this
Sheo Swarup v. King EmperorExplained
Sheo Swarup v. King Emperor AIR 1934 PC 227 · Who else cites this
Chandrappa v. State of KarnatakaExplained
Chandrappa v. State of Karnataka (2007) 4 SCC 415 · Who else cites this
Veena v. StateApplied¶18
Veena v. State, 2017 SCC OnLine Del 9926 · Who else cites this
Basalingappa v. MudibasappaApplied¶20
Basalingappa vs. Mudibasappa, 2019 (5) SCC 418 · Who else cites this
3 provisions across 2 enactments
Tarsem Lal
Rajender Kumar
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
