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Saturday, June 25, 2022

Apellate court shouldn’t overturn acquittal by trial court if findings correct in cheque dishonour case: HC

As per Chahar, Shiv Kumar had issued him a cheque of Rs 3.50 lakh on December 1, 2015 against a similar amount that the latter had borrowed from him earlier. When Chahar presented the cheque at the bank, it was dishonoured with the remarks “insufficient funds”.

Written by Jagpreet Singh Sandhu | Chandigarh |
May 25, 2022 12:04:41 am
cheque bouncing case“In the present case, facts are slightly different...the best evidence available with the complainant was not produced by him, which led to an adverse inference being drawn against him,” said Justice Bedi.

Dismissing an application seeking to file an appeal against the order by a trial court for acquittal in a cheque dishonour case, the Punjab and Haryana High Court said that the appellate court should not disturb the finding of acquittal recorded by the trial court, merely, because it (appelate court) could have arrived at a different conclusion.

Hearing the plea filed by one Raj Kumar Chahar for leave to appeal against an order passed by Judicial Magistrate First Class, Charkhi Dadri on January 22, 2020 whereby the accused-respondent (Shiv Kumar) had been acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881, a bench of Justice Jasjit Singh Bedi has dismissed the matter.

As per Chahar, Shiv Kumar had issued him a cheque of Rs 3.50 lakh on December 1, 2015 against a similar amount that the latter had borrowed from him earlier. When Chahar presented the cheque at the bank, it was dishonoured with the remarks “insufficient funds”. After a legal notice, a case under section 138 of NI Act was filed in the court of the judicial magistrate, which came to the conclusion that there was no evidence to suggest that the complainant had advanced a sum of Rs 3.50 lakh to the accused. It was also held by the trial court that the complainant himself had admitted in his cross-examination that accused Shiv Kumar used to purchase tyres from him and that the said cheque had been given to the complainant as security. The complainant also admitted in his cross-examination that all the transactions entered into between him and another persons were recorded in a specific register but the same was not produced as evidence. Based on the conclusion, Shiv Kumar was acquitted.

However, Chahar moved HC for filing an appeal against the JMIC order, arguing that a security cheque is also a cheque within the meaning of Section 138 of the NI Act.

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Justice Bedi, after hearing the matter, held, “The trial court has referred to the cross-examination of the complainant, wherein, it is mentioned that all his transactions were recorded in a specific register, which however, had not been produced by the complainant… the non-production of the register along with the other factors proved to be fatal to the case of the complainant leading to the acquittal of the accused.”

On Chahar’s contention that once the execution of the cheque was admitted, then there was no requirement to prove by way of any writing or producing account books that the accused owed a legal debt to the complainant, Justice Bedi, citing the judgment of Supreme Court in Rohit Bhai’s case (supra), held that once the execution of the cheque is admitted, the source of funds available with the complainant is not required to be proved by him.

“In the present case, facts are slightly different…the best evidence available with the complainant was not produced by him, which led to an adverse inference being drawn against him,” said Justice Bedi.

Further citing other Supreme Court and High Court verdicts, Justice Bedi said, “…while an appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded, it is equally true that there is a double presumption in favour of the innocence of the accused, firstly on account of the presumption of innocence available to an accused and secondly on account of the fact that the competent court has acquitted the accused and therefore, if two reasonable conclusions were possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court, merely, because the appellate court could have arrived at a different conclusion than that of the trial court. However, where the judgment appealed against is totally perverse and the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant or inadmissible material, then the appellate court would be well within its powers to interfere with the said findings and set them aside.”

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