The main legal point established in the judgment is the significance of evidence and the burden of proof on both parties in rebutting the presumption under section 139 of the Negotiable Instruments Act.

JUDGMENT :

S.M. MODAK, J.

1. Heard learned Advocate for the Appellant, learned Advocate for Respondent No. 1 and learned APP for Respondent No. 2-State.

2. The Court of Metropolitan Magistrate, 33rd Court, Kurla, Mumbai as per the common judgment convicted Respondent No. 1-accused for the offence punishable under section 138 of the Negotiable Instruments Act. It is in respect of two different cheques, one cheque is for Rs.2,00,000/- and another is for Rs.1,00,000/-. Respondent No. 1 is sentenced to suffer simple imprisonment for one year and to pay fine of Rs.3,50,000/-. Rs.3,40,000/- was to be paid to the Appellant-complainant. However, when Respondent No. 1-accused preferred two separate Appeals, the Additional Sessions Judge, Bombay set aside those conviction vide judgment dated 6th February 2006 (Appeal No. 672 of 2006 and 673 of 2006). The correctness of this common judgment is challenged by way of these two Appeals by the original complainant. The parties will be referred to by their original status.

3. I have heard learned Advocate Shri Ashok Gade for the Appellant-complainant and learned Advocate Shri Makrand Bakore for Respondent No. 1-accused and learned APP Shri Dedhia for the State.

4. Their main crux of argument is that once issuance of cheques are admitted, the presumption will come into picture and rebuttal evidence given by the accused in present case is insufficient. Another limb of the argument is about service of notice on proper address and drawing of presumption under Section 27 of the General Clauses Act. Apart from these specific grounds taken by the complainant, there is objection taken by the accused to interfere in the judgment of acquittal. So these Appeals need to be decided on following main points.

Points involved

(a) Whether presumption is rebutted by the accused directly or indirectly?

(b) Whether that rebuttal evidence is only by way of denial or whether in fact it is sufficient to rebut the presumption?

(c) Whether notice is served on the accused and whether this fact can be proved either by drawing presumption or on the basis of available evidence?

(d) Whether it can be said that findings by the Appellate Court are perverse so that it can be interfered in the Appeal?

Job of the Court

5. It is true that the complainant/payee of the cheque can rely upon presumption incorporated by way of section 139 of the Negotiable Instrument Act. It deals with existence of legally recoverable debt or liability. Many a time accused only takes a defence of denial, that’s to say denying existence of liability, issuance of cheque and further procedural compliance. In this contingency the job of the Court is only restricted to scrutinise whether presumption is rebutted simply on the basis of denial and cross examination. But some time it happens that accused also gives evidence either through himself or by examining witnesses. In such contingency, the Court will have to appreciate evidence of both parties on the basis of accepted principles of appreciation of evidence and then to arrive at a conclusion. In this case, similar thing has happened and the accused herself has given evidence and also examined witness from the banker, Central Bank of India. It is on the point of when did the cheque book containing these two cheques were in fact issued by the bank. So the issue is whether the learned Additional Sessions Judge was right in reversing the findings given by the trial Court. The law on the point of interference by the Appellate Court is well settled.

Scope of an Appeal

6. The Hon’ble Supreme Court in case of K. Prakashan vs. P.K. Surendaran, 2008 (1) SCC 258 has reiterated the law on this point. When two views possible, the Appellate Court shall not reverse the judgment of acquittal only because another view is possible. It is not sufficient to merely observe that burden is not discharged by the accused, it is also necessary to observe how that burden can be discharged. Furthermore, the test of proof beyond reasonable doub