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2020 Supreme(Bom) 909
IN THE HIGH COURT OF BOMBAY AT PANAJI BENCH
M.S. Sonak, J.
Rakesh Kambli - Appellant
Versus
Ajit Tari - Respondent
Criminal Appeal No. 21 of 2016
Decided On : 19-09-2020
C. Collasso, Advocate, P. Faldessai, Advocate
The main legal point established in the judgment is that an appellate court would not interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality.
Headnote:
Negotiable Instruments Act - Cheque Dishonour - Section 138 - Summary: The court considered whether the cheque issued by the accused towards a legally enforceable debt. The appellant argued that the lower court's reliance on a previous decision was erroneous, but the court held that the acquittal was based on lack of evidence to substantiate the debt, and therefore, upheld the acquittal. The court clarified the legal position and dismissed the appeal.
Fact of the Case:
The appellant, a complainant, alleged that he advanced a sum of Rs. 1,06,000 to the accused for the purchase of a bus, and the accused issued a cheque for the same. However, the cheque was dishonoured, leading to the filing of a criminal case.
Finding of the Court:
The court found that there was no evidence to establish beyond reasonable doubt that the amount was advanced by the complainant to the accused, and the acquittal by the lower court was upheld.
Issues: The main issue was whether the cheque was issued towards a legally enforceable debt, and whether there was sufficient evidence to substantiate the debt.
Ratio Decidendi: The court clarified that the acquittal was based on lack of evidence to substantiate the debt, and upheld the lower court's decision. It also emphasized that the appellate court would not interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality.
Final Decision: The appeal was dismissed, and there was no order as to costs.
JUDGMENT
M S Sonak, J. - Heard Ms. C. Collasso, Advocate for the Appellant and Mr. P. Faldessai, Additional Public Prosecutor for the State. Respondent No.1 though served is neither present nor represented.
2. This appeal is directed against the judgment and order dated 31.01.2011 made by the Judicial Magistrate, First Class at Panaji (JMFC for short), in OA Criminal Case No.1198/2007/B acquitting the respondent no.1 (accused) of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (said Act).
3. The appellant is the original complainant in OA Criminal Case No.1198/2007/B before the learned JMFC. It is the case of the complainant that he was known to the accused who is a businessman supplying sand for construction work. At the request of the accused, the complainant had stated to have advanced a sum of Rs. 1,06,000/- for purchase of bus on the assurance that the accused would repay the said amount by October, 2007. It is also the case of the complainant that towards repayment of the said amount the accused handed over to him a cheque bearing no.160528 dated 02.11.2007 of IndusInd Bank, Panaji branch for an amount of Rs. 1,06,000/-. However, on 09.11.2007 this cheque was dishonoured for want of sufficient funds in the account of the accused. Therefore, the complainant issued the necessary notices to the accused and thereafter filed the aforesaid case.
4. The issue before the learned JMFC was whether the cheque which was dishonoured was issued towards a legally enforceable debt. The learned JMFC has held that it was not and therefore, acquitted the accused. Hence the present appeal.
5. Ms. Collasso, learned counsel for the appellant submits that the view taken by the learned JMFC is vitiated by perversity. She submits that the learned JMFC erred in relying upon the decision in Sanjay Mishra v. Ms. Kanishka Kapoor @ Nikki & Another, (2009) AllMR(Cri) 1080 , since, the view taken therein, has been impliedly overruled by the Hon'ble Supreme Court and in any case, held as not reflecting the correct legal position by other learned Single Judges. She submits that the circumstance that this hand loan may not have been reflected in the income tax returns of the complainant, is a matter entirely between the complainant and the Income Tax Department. Based upon this circumstance, the presumption under the said Act can in no manner be diluted. She therefore submits that the view taken by the learned JMFC in this matter is not even a plausible view and therefore, the same warrants interference in this appeal. She relies on the decision in Kashinath Balu Gaonkar v. Sunita Krishnajirao Dessai & Another - Criminal Revision Application No.14/2015; Ragini Gupta v. Piyush Dutt Sharma - CRLR No. 5263/2018 and Assistant Director v. Shanti, (2002) 6 SCC 259 in support of her submissions.
6. The contentions of Ms. Colasso will have to be appreciated by bearing in mind the scope of an appeal against acquittal. In State of Goa v. Sanjay Thakran and another, (2007) 3 SCC 755 the Hon'ble Apex Court has held that while exercising powers in an appeal against the order of acquittal, the appellate court 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 arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment of the court below.
7. In this case, whilst there may be some substance in the contention of Ms. Collasso that some dent has been made to the position explained in Sanjay Mishra (supra) by the decision in Kashinath Balu Gaonkar, the perusal of the impugned judgment and order would indicate that the acquittal is not based upon the decision in Sanjay Mishra (supra) or in any case, the decision, is not entirely based upon the decision in Sanjay Mi
