The burden is on the complainant to prove the legally recoverable amount from the accused, and the accused can rebut the presumption under section 139 of the Negotiable Instruments Act by raising a probable defense.

JUDGMENT :

1. The application has been filed by the applicant-original complainant M/s. Bajaj Finance Limited seeking leave to appeal under section 378(4) of the Code of Criminal Procedure, 1973 in respect of judgment and order dated 17.07.2020 passed by the 16th Additional Chief Judicial Magistrate, Vadodarat (hereinafter referred to as ‘the Trial Court’) in Criminal Case No. 41156/2018, whereby the Trial Court has acquitted the respondents-accused from the charges levelled against them under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the said Act’).

2. As per the case of the applicant- complainant, the applicant is the finance company registered under the Companies Act and is engaged in the business of granting loans. The respondents-accused had taken loan of Rs.1,39,40,000/- on 30.04.2011 and the accused had agreed to pay monthly installment of Rs.28,666/-. The accused in respect of the said loan, had issued a cheque of Rs.4,31,664/- dated 09.10.2018 in favour of the complainant, which cheque on presentation was dishonoured by the Bank with the endorsement of ‘insufficient fund’. The complainant- company therefore had given a notice dated 31.10.2018, calling upon the accused to make payment of cheque amount, however, the said notice was not replied by the accused. The complainant-company had therefore filed the complaint. The Trial Court after appreciating the evidence on record has acquitted the respondents-accused from the charges levelled against them under section 138 of the said Act by holding inter alia that the complainant had misused the blank cheque given by the respondents-accused by way of security. Being aggrieved by the said judgment, the applicant-complainant has preferred the present application seeking leave to appeal under section 378(4) of the Code of Criminal Procedure.

3. Learned Advocate Mr. Dhruv Dave for the applicant has placed reliance on the decisions of the Supreme Court in the case of Chandrappa and Ors. Vs. State of Karnataka reported in (2007) 4 SCC 415 and in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Ors. reported in (2016) 4 SCC 357 and submitted that the scope of interference in the judgment of acquittal is not limited and the Appellate Court has full powers to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. According to him, the accused had not disputed their signatures on the cheque in question and therefore, the presumption under sections 118 read with 139 of the said Act was required to be raised against the accused, and the accused had failed to rebut the said presumption by leading cogent evidence.

4. There cannot be any disagreement with the proposition of law laid down by the Supreme Court in the aforesaid judgment relied upon by learned Advocate Mr. Dave in case of Chandrappa and Ors. Vs. State of Karnataka (Supra). The Supreme Court while laying down the general principles regarding powers of the Appellate Court to deal with the appeal against the order of acquittal, has held as under:

“42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(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 emphasize