1. This appeal is filed by the appellant - original complainant under the Page 1 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 30.07.2011, passed in Criminal Case No. 2513 of 2008 by the learned 7th Additional Chief Judicial Magistrate, Junagadh, recording the acquittal.

2. Facts, in brief, are that appellant - original complainant - Kalubhai Ranimgbhai Vank lodged a complaint before the competent Court that the complainant, out of friendship, lent Rs.1 lakh to the respondent No. 2 in his hour of need, so as to help him, against which, the respondent No. 2 issued a cheque bearing No. 862883 dated 09.06.2008, drawn on the State Bank of Saurashtra, Bhesan Branch for Rs.1 lakh and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 09.06.2008 the complainant deposited the cheque in the Bank of Baroda, Makhiyala Branch, the same was returned by the bank with an endorsement "Fund Insufficient". Accordingly, when despite several requests, the respondent No. 2 did not repay the said amount, the complainant issued a legal notice dated 08.07.2008 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act "), which was served upon the respondent No. 2 on 09.07.2008. The respondent No. 2 neither replied the said notice not paid the cheque amount and hence, the complainant constrained to file the complaint under Section Page 2 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 138 of the NI Act before the competent Court at Junagadh.

2.1 Upon such complaint being filed and subsequent service of summons upon the respondent No. 2, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded and several oral and the documentary evidence were produced. Vide impugned judgment and order, the learned Magistrate acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. Hriday Buch for the appellant - original complainant, learned advocate Mr. Zalak Pipalia for the respondent No. 2 and learned APP Ms. Jirga Jhaveri, APP for the respondent No. 1 - State.

3.1 The learned advocate for the appellant - original complainant has mainly contended that the learned Magistrate 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 "Fund Insufficient". Furthermore, in his submission, the learned Magistrate ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant.

Further, it is submitted that the learned Magistrate ought to have appreciated Page 3 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 the facts that the cheque in question was deposited in the bank in time; legal notice upon the respondent No. 2 was also issued within the stipulated time;

the cheque was returned unpaid with an endorsement "Fund Insufficient"

4.1 The learned advocate for the respondent No. 2 - 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 Magistrate has rightly recorded the acquittal.

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 Magistrate has rightly Page 5 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 acquitted the accused of the charges levelled against him.

4.3 It is submitted that the presumption under the Act is for debt or liability, but it cannot be for the debt to the legally enforceable debt and accordingly, the learned Magistrate has rightly come to such a conclusion.

4.4 The learned advocate for the respondent No. 2 - accused further submitted that the learned Magistrate 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.

5. The Court has also heard the learned APP for the respondent No. 1 -

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.

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.

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".

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:

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 Page 9 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 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, 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 Page 10 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 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."

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;

R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022

(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."

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:

"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 reappreciation 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.

R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 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."

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 Page 14 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 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.

R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 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."

(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.

7.2 In this context, from the evidence on record, following aspects weighed with the Court:

The the legal notice appears to be the defective;

complainant has failed to prove the contents of the legal notice, Exh. 23 issued to the respondent No. 2 - accused;

iii) under the provisions of Section 138 of the NT Act, the debt is to be the legally enforceable debt, however, in the case on hand, the complainant has failed to prove the debt to be the legally enforceable debt;

iv) admittedly, the complainant was doing the agricultural work and out of relations with the respondent No. 2 - accused, had given hand loan of Rs.1 lakh to him, however, except bare words about the same, no evidence has been produced by the complainant. Thus, the complainant has failed to discharge the initial burden cast upon him;

v) presumption under Section 139 of the NI Act is rebuttable one and the respondent No. 2 - accused appears to have succeeded in rebutting the same.

7.3 Thus, after due appreciation and evaluation of the evidence on record, the learned Magistrate has come to a conclusion that the debt cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. Further, it is not established that the cheque in question was given towards the legal liability on the part of the respondent - accused as, it is the case of the complainant himself that he had lent Rs.1 lakh to the respondent - accused, which he had repaid, as discussed herein above.

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 : (2019) 5 SCC 418, wherein, the Court has observed as under:

7.5 Thus, the presumption under Section 139 is a rebuttable presumption Page 19 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 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.

7.6 Further, if the decision in Krishna Janardhan Bhat v. Dattatraya G. Hegde, MANU/SC/0503/2008 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 trial Judge has rightly concluded that the dues were not legally recoverable dues.

7.7 Further, 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, Page 20 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022 R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022 "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.

7.8 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."

7.9 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 Magistrate has meticulously considered the depositions of all the witnesses and came to such a conclusion and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which do not call for any interference at the hands of this Court.

R/CR.A/529/2012 JUDGMENT DATED: 19/10/2022

8. 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, in fleri, the appeal fails and is dismissed accordingly.

Impugned judgment and order dated dated 30.07.2011, passed in Criminal Case No. 2513 of 2008 by the learned 7th Additional Chief Judicial Magistrate, Junagadh, recording the acquittal is confirmed. Bail bond, if any, shall stand discharged. R&P, if received, be transmitted back forthwith.

[ A. C. Joshi, J. ] hiren /PC-5 Page 22 of 22 Downloaded on : Wed Oct 19 20:54:35 IST 2022