1. Present appeal has been filed by the appellant - original complainant challenging the judgment and order dated 03.01.2005, passed in Criminal Appeal No. 8 of 2004 by the learned Additional Sessions Judge, 6th Fast Track Court, Banaskantha @ Palanpur, recording the acquittal. The said Page 1 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 appeal was filed against the judgment and order dated 01.04.2004 passed in Criminal Case No. 6263 of 1998 filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 (NI Act ), by the learned 4th Joint Civil Judge (Senior Division) and Judicial Magistrate First Class, Palanpur, whereby, the learned Magistrate had convicted the respondent - accused.

2. Facts in nutshell are that complainant - Bhagvandas Gangarambhai, original accused Pradipkumar Hargovindbhai Patel and others jointly decided to purchase a land belonged to Jain Mahajan Trust, Palanpur. In the said land, the complainant had 30% share i.e. 22710 sq. mtrs. of land, which the accused decided to purchase from the complainant and an agreement, Exh. 29 to that effect was also entered into between them on 10.11.1997 for a sale consideration of Rs.5,70,620/-. Out of the said amount, the respondent - accused paid Rs.3,09,000/- and for rest, the accused issued cheques, respectively dated 02.01.1998 and 02.02.1998 for Rs.1,86,540/- each. However, on 04.06.1998, when the complainant deposited the cheques in the Union Bank, Palanpur, the same were returned by the bank with an endorsement "Stop Payment". On enquiring with the bank, the complainant allegedly found that, in fact, no sufficient fund was there in the account of the accused. Accordingly, the complainant issued a legal notice dated 17.06.1998 under the provisions of the NI Act , which was served upon the respondent - accused, who replied the said notice on 17.07.1998. Since the respondent No. 1 did not pay the cheque amounts, the complainant constrained to file a complaint under Section 138 of the NI Act before the learned Judicial Magistrate First Class, Palanpur, who, on conclusion of the trial, convicted the accused for the alleged offence and sentenced him to undergo simple imprisonment for one year with fine of Rs.5,000/-, in default Page 2 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 thereof, to undergo further simple imprisonment for two months. The accused was also ordered to pay compensation in the sum of Rs.2,50,000/- to the complainant. The said judgment and order was the subject matter of challenge before the learned Sessions Judge, who, on re-appreciation and reevaluation of the evidence, reversed the conviction into acquittal by way of the impugned order herein.

3. Heard, learned advocate Ms. Archana Acharya for the appellant - original complainant, learned advocate Mr. Girish K. Patel for the respondent No. 1 and learned APP Ms. Jirga Jhaveri for the respondent No. 2 - State.

3.1 Learned advocate Ms. Acharya for the appellant - original complainant has mainly contended that the learned Sessions Judge ought not to have reversed the judgment and order passed by the learned trial Court, whereby, the respondent - accused had been convicted and sentenced. She submitted that the cheques in question were duly signed by the respondent No. 1 and came to be dishonoured when presented before the bank with an endorsement "Stop Payment". Furthermore, in her submission, the learned Sessions Judge ought to have appreciated the fact that the cheques were issued for discharge of legal liability towards complainant and the fact that the respondent - accused has also admitted the agreement, Exh. 29 with the complainant and issuance of cheques towards outstanding dues of sale consideration. The learned advocate for the appellant strenuously submitted that part sale consideration was also made by the respondent - accused and for remaining amount, the cheques in question were issued, which were dishonoured as stopped payment. She submitted that as per the accused, the land in question belongs to the trust and on coming Page 3 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 to know about the same, he got the payment stopped from the bank, however, indisputably, he has not filed any complaint whatsoever in that regard and no proceedings have been initiated by him. Further, the agreement in question, Exh. 29 is also not in dispute and admitted by the respondent - accused. Further, there is a mention of the cheques in the said agreement.

3.2 The learned advocate for the appellant submitted that in fact, no sufficient amount was lying in the bank account of the respondent - accused and hence, with mala fide intention, stop payment of cheques was made. In her submission, the learned Sessions 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 under Sections 118(a) and 139 of the NI Act.

3.3 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, however, the learned Sessions Judge has not properly appreciated the evidence on record and thereby, has committed an error in reversing the judgment and order of the trial Court and recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, she urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

3.4 In support, the learned advocate for the appellant has relied upon following decisions:

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2) Rahul Sudhakar Anantwar v. Shivkumar Kanhaiyalal Shrivastav , (2019) 10 SCC 203;

3) Triyambak S. Hegde v. Sripad , 2021 SCC OnLine SC 788;

4) Basalingappa v. Mudibasappa , (2019) 5 SCC 418;

Magnum Aviation Pvt. Ltd., 2014 (3) GLR 2482 SC;

8) Jagdish Rai Agarwal and Others v. The State of A.P. and Others , 2005 Cri.L.J. 314;

9) Goaplast (P) Ltd. v. Chico Ursula D'Souza and Another , (2003) 3 SCC 232;

10) Modi Cements Ltd. v. Kuchil Kumar Nandi , (1998) 3 SCC 249;

11) Girishbhai Narvarbhai Patel v. State of Gujarat and Another , 2006 (1) GLR 786;

12) M/s. Prajapati Oil Industry through its owner Rameshbhai v. State of Gujarat , 2004 (1) GLH 365;

4. Per contra, learned advocate Mr. Girish Patel for the respondent No. 1 - accused, while supporting the impugned judgment and order of the Sessions Court, submitted that the Page 5 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 learned Sessions Judge has, after due consideration of the evidence on record, come to such a conclusion and has acquitted the accused, which is just and proper. He 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. 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. 1 - 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 Sessions Judge has rightly recorded the acquittal.

4.2 The learned advocate for the respondent No. 1 has heavily submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and therefore, the learned Sessions Judge has rightly acquitted the accused of the charges levelled against him.

4.3 It is submitted that when the agreement, Exh. 29 was executed, it was made to understand that the property belonged to the appellant - complainant having 30% share in the same. Accordingly, the respondent No. 1 decided to purchase the same and also made the part payment and for rest, issued cheques in question. However, subsequently, it came to the knowledge of the respondent No. 1 that the property was of the Jain Panjrapol Trust and the appellant had no right/title in the same. Further, it Page 6 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 was learnt that the said trust had neither sold nor agreed to sale the land in question in favour of the appellant - complainant. Accordingly, on realizing that the respondent No. 1 was cheated and the complainant breached the trust, he got the payment stopped. He submitted that, attention was also drawn of the complainant in that regard and also demanded the cheques back, but the complainant sought time to return and then, deposited the same in the bank. The learned advocate for the respondent No. 1 further submitted that even the demanded amount is not as per the so-called outstanding and there is anomaly in the same. Accordingly, he submitted that when the debt is not proved to be the legally enforceable debt as there was no consideration, the learned Sessions Judge has rightly reversed the judgment and order of the learned trial Court and thereby, acquitted the respondent No. 1.

4.4 The learned advocate for the respondent No. 1 - accused further submitted that the learned Sessions Judge has rightly acquitted the accused as the complainant failed to bring home the charge against the accused. 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.

4.5 In support, the learned advocate for the respondent No. 1 has relied upon following decisions:

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5. The Court has also heard the learned APP for the respondent No. 2 - State.

6. Heard, the learned advocates for the respective parties and gone through the impugned judgment and order of the learned Sessions Judge as also 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.

R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 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 Court".

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:

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."

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, Page 10 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 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."

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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."

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 Page 12 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 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."

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:

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:

"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."

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 Page 14 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 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."

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 Page 15 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 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 Page 16 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 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."

(emphasis supplied)."

7. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks as under:

Explanation.-- 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 Sessions Judge has come to a conclusion that the debt cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise.

7.2 In the aforesaid premises, if the facts of the case are adverted to, it is the case of the appellant - complainant that the appellant and others intended to jointly purchase a land belonging to the Jain Mahajan Trust at Palanpur, wherein, the share of the complainant was 30%. The complainant allegedly sold the said land (30% share) to the respondent No. 1 for which, an agreement, Exh. 29 was executed between them. That, the respondent No. 1 also made part payment of Rs.3,09,000/- and for rest, he issued cheques in favour of the complainant. The said cheques were dishonoured when presented in the bank on account of stopped payment. Accordingly, the complaint in question came to be filed as the respondent No. 1 did not pay the outstanding amount.

R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 7.3 Whereas, as the per the case of the respondent No. 1, he intended to purchase the land in question and accordingly, made the part payment and for the rest, issued cheques in question, however, as soon as he came to know about the land being not belonged to the complainant, he approached the complainant, however, thereafter, the complainant initiated the proceedings in question. In the submission of the respondent No. 1, since, the agreement itself is invalid as being without consideration, there is no question of debt being legally enforceable debt. Further, the respondent No. 1 has gained nothing out of such a transaction.

7.4 From the facts and record, following salient points have emerged:

thus: "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from doing,or promise to do or to abastain from doing, something, such act or abstinence or promise is called a consideration for the promise"... .In Sonia Bhatia Vs. State of U.P. (1981) 2 SCC 585 it was held: (SCC p. 595 Para 20) "From a conspectus of the definitions contained in the dictionaries and the books regarding a gift of an adequate consideration, the inescapable conclusion that follows is that "consideration" means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee."

viii) presumption in favour of the complainant is rebuttable and standard of proof is preponderance of probability;

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ix) the complainant appears to have failed to discharge the initial burden to prove his case.

7.5 Accordingly, when the transaction is without any consideration, it cannot be said that there was legal dues of the complainant. There appears nothing on record to substantiate the claim of the complainant that the debt was legally enforceable debt for want of any material to substantiate the same and therefore, in the overall facts and circumstances of the case, the learned Sessions 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 and in view of the aforesaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Sessions Judge.

7.6 So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 :

7.7 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, the accused has succeeded in rebutting the presumption, showing preponderance of probability and hence, onus shifts upon the complainant to prove otherwise, however, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt as there is nothing on record to show that the land belonged to the complainant and that, he had 30% share in the said land. On the contrary, it appears that the land belongs to the Trust. Even otherwise, the transaction is without consideration as it is nobody's case that the land in question is transferred to the respondent - accused. Accordingly, when the respondent - accused has succeeded in rebutting the presumption, the learned Sessions Judge has rightly come to the conclusion that the said provision would be of no help to the complainant.

R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 7.8 On re-appreciation and reevaluation of the oral and 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 Sessions Judge has meticulously considered the evidence and came to such a conclusion and in the considered opinion of this Court, the learned Sessions Judge has rightly come to such a conclusion, which does not call for any interference at the hands of this Court.

8. The Court has gone through the decisions relied upon by the learned advocate for the appellant - original complainant, which are 15 in number. A perusal of the same reveals that they are mainly on the aspect of presumption under Section 139 of the NI Act, which is indisputably rebuttable one. There cannot be dispute as regards to ratio laid down in the same, nonetheless, as discussed herein above in detail, the debt is not proved to be the legally enforceable debt. Further, the respondent - accused has succeeded in rebutting the presumption against him, by showing preponderance of probability. Besides, in V. Sampath (supra), the bounced cheque was issued towards balance sale consideration wherein, the sale transaction was not completed, however, the accused was already in possession of the sale property. Nonetheless, in the case on hand, the sale property itself does not belong to the complainant; further, it is not the case that the accused is in possession of the same; the transaction is without any consideration (property in question). Accordingly, these decisions would be of no help to the appellant.

9. The learned advocate for the respondent No. 1 has relied Page 23 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 upon some decisions, as referred to herein above. If the decision in Krishna Janardhan Bhat (supra), is referred to, it is observed by the Apex Court that, "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 liability". 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. Thus, in the case on hand the learned Sessions Judge has rightly concluded that the dues were not legally recoverable dues.

9.1 In the decision in Kumar Exports (supra), as relied by the learned advocate for the respondent No. 1, the Apex Court has observed that, "fact that cheque pertained to goods supplied to appellant was denied by appellant stating that complainant had stopped manufacture of goods called for and no supply was made - held that when contrary not proved by respondent, presumption stood rebutted, hence, there could be no case for conviction".

9.2 In the decision in A. V. Murthy (supra), the Apex Court held that, "the presumption under Section 118 of Act, 1881 comes into being that until the contrary is proved, every negotiable instrument was drawn for consideration. At this stage, it would be erroneous and illegal to say that the cheque Page 24 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022 R/CR.A/577/2006 JUDGMENT DATED: 07/07/2022 drawn by respondent was in respect of a debt or liability, which was not legally enforceable. Impugned judgment of High Court set aside".

10. It would be apt to refer to a decision in P. Venugopal v. Madan P. Sarathi, MANU/SC/8264/2008 it is held by the Apex Court that, "Initial burden is 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 case on hand, the complainant has failed to discharge the initial burden.

10.1 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 Sessions Judge do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 03.01.2005, passed in Criminal Appeal No. 8 of 2004 by the learned Additional Sessions Judge, 6th Fast Track Court, Banaskantha @ Palanpur, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P, if received, be transmitted back forthwith.

[ A. C. Joshi, J. ] hiren Page 25 of 25 Downloaded on : Thu Jul 07 21:36:31 IST 2022