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2017 Supreme(Mad) 887
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, J.
R. Thangavel - Appellant
Vs.
K. Palanisamy – Respondent
CRL. A.No. 429 of 2016
Decided On : 26-04-2017
For the Appellant : Mr. R. Nandhakumar
For the Respondent: Mr. N. Ponraj
Headnote:
NI Act – Section 139 – Criminal Procedure Code, 1973 – Section 255(1) – Appellant/Complainant has preferred the instant Criminal Appeal as against the judgment of the acquittal passed by the Learned Judicial Magistrate No. II, Pollachi – Learned Judicial Magistrate No.II, Pollachi, while passing the impugned judgment of the acquittal in S.T.C. at para-16 ... among other things observed that ... on the side of the Respondent/Accused, a presumption in his favour as per Section 139 of NI Act was made and further, the Appellant/Complainant had failed to establish the ingredients of his case and finally came to the conclusion that the offence under Section 138 of NI Act was not established against the Respondent/Accused and resultantly, acquitted him –Held, Ordinarily, an Appellate Forum is not meant to fill up the gaps or omissions or lacunae in the trial court case – After all, the prime consideration is to avoid miscarriage of justice – In the present case in S.T.C. on the file of the trial Court, there had existed a reasonable doubt and the trial Court delivered a judgment of acquittal in the main case – circumstances relied on by the Respondent/Accused in S.T.C. on the file of the trial Court, cannot be considered to be irrelevant or insignificant ones in the considered opinion of this court – It is true that this Court is an Appellate Authority has plenary power than that of trial Court in the manner Assessment, Trial, and Appreciation of Evidence, to decide the disputed points – As an appellate Court, the High Court in Appeal against the Acquittal is to tread cautiously and in fact, the High Court should be circumspect in disturbing the finding of the acquittal passed by the trial Court – Appeal from an acquittal should be in an exceptional circumstance or for compelling reasons as the case may be. Of course, in Law, it is an extraordinary remedy, notwithstanding the fact that preferring an Appeal is a statutory right envisaged under Criminal Procedure Code – Criminal appeal is dismissed.
The Appellant/Complainant has preferred the instant Criminal Appeal as against the judgment of the acquittal dated 08.10.2015 in S.T.C.No.380 of 2011 passed by the Learned Judicial Magistrate No. II, Pollachi.
2. The Learned Judicial Magistrate No.II, Pollachi, while passing the impugned judgment of the acquittal in S.T.C.No.380 of 2011 on 08.10.2015 at para-16 ... among other things observed that ... 'on the side of the Respondent/Accused, a presumption in his favour as per Section 139 of NI Act was made and further, the Appellant/Complainant had failed to establish the ingredients of his case and finally came to the conclusion that the offence under Section 138 of NI Act was not established against the Respondent/Accused' and resultantly, acquitted him under Section 255(1) of Cr.P.C.
3. Questioning the correctness, validity and legality of the judgment of the acquittal, dated 08.10.2015 in S.T.C. No. 380 of 2011 passed by the Trial Court, the Appellant/Complainant has preferred the present Criminal Appeal before this Court, by taking a plea that the trial Court had failed to take into consideration that in the instant case, the execution of Ex.P2, Cheque dated 30.10.2010 was not denied. Further, when the execution of cheque was not denied, the burden is on the part of the Respondent/Accused to rebut the presumption under Section 118 and 139 of N.I. Act, 1881. In this connection, the Learned Counsel for the Appellant/Complainant takes a stand that the trial Court had not considered the legal aspects of Sections 118 and 139 of N.I. Act, which has resulted in serious miscarriage of justice.
4. The Learned Counsel for the Appellant/Complainant contends that only 'a smoke of suspicion' alone was endeavoured to be created by the Respondent/Accused and the trial Court without viewing the veracity of the defence version, had simply acquitted the Respondent/Accused, which is clearly unsustainable in the eye of law.
5. The Learned Counsel for the Appellant urges before this Court that on the date of issuance of Ex.P2-Cheque, there was an existence of legally enforceable debt and to dislodge the mandatory presumption as per Section 139 of N.I. Act, 1881, the Respondent/Accused had not pleaded any probable, acceptable and reasonable defence. On the contrary, it is represented on behalf of he appellant that the appellant had clearly adduced a impeccable, unimpeachable and cogent evidence in support of his contention.
6. The Learned Counsel for the Appellant projects an argument that the Respondent/ Accused had admitted the signature and execution of the cheque and therefore, it is improper and unfair on the part of the trial Court to acquit the respondent/accused, of course based on the presumption and assumption.
7. The Learned Counsel for the Appellant brings to the notice of this Court that the Respondent/Accused as RW1, had deposed and admitted that the appellant/complainant had filed a civil suit against him based on the promissory note executed by him and the same was decreed in favour of the appellant/complainant.
8. The Learned Counsel for the Appellant draws the attention of this Court that the Respondent/Accused had deposed that the earlier cheque proceedings between him and RW2 (Ponmalaiyur Arumugam) was settled in Appeal Proceedings and therefore, it is improper to draw the presumption against the present Ex.P2-Cheque, when the Respondent/Accused had alleged and admitted that he had not taken any action to get back all the documents given by him to the said RW2.
9. The Learned Counsel for the Appellant contends that the evidence of PW2 (a third party to the present Cheque Ex.P2) that he had not disclosed his earlier transaction with the respondent/accused to the appellant/complainant would not be a legal and substantial reason for the Respondent/Accused to refute the presumption. However, this vital aspect of the matter, was omitted to be looked into by the trial Court in proper and real perspective.
10. Finally, it is the s
