The Trial Court's acquittal under Section 138 of the Negotiable Instruments Act was upheld due to lack of evidence supporting the claims of the complainant regarding cheque validity and legally recoverable debt.

ORDER :

SANJEEV S. KALGAONKAR, J.

Heard on I.A. No. 5846 of 2023 which is an application for leave to appeal u/s. 378 (4) of Cr.P.C assailing the judgment of acquittal dated 03.03.2023 passed by Shri Amool Mandloi JMFC, Gwalior in Criminal Case No. 9696 of 2015 (SC NIA ) whereby the respondent/accused Abhilash Garg was acquitted of the charge for an offence punishable u/s. 138 of the Negotiable Instruments Act.

2. The application for leave to appeal inter alia states that learned Trial Court committed an error in acquitting the accused. The accused has not denied his signature on alleged cheque Ex. P/1, therefore, presumption u/s. 118 and 139 of the Negotiable Instruments Act was available that cheque was issued for legally recoverable debt or liability. Learned Trial Court instead of raising legal presumption in favour of the complainant shifted burden of proof on the complainant. The complainant and the accused were well acquainted with each other, therefore, complainant has advanced loan of Rs. 8,00,000/- from the fund of retiral benefits of his father, to the accused for his personal need. Learned Trial Court committed an error in appreciation of evidence and circumstances of the case. The bank had dishonoured the cheque for the reason of insufficient fund. Learned Trial Court committed error in rejecting the complaint on the ground that the cheque was presented beyond the period of its validity. The impugned judgment deserves to be set aside. The appellant may be granted leave to appeal.

3. Heard. Perused the record.

4. Learned Counsel for the appellant draws attention of this Court towards para Nos. 12 and 13 of the judgement as also statement of Pramod Chauhan (CW/1) and Indira Chauhan (CW/2).

5. Learned Counsel submits that the Trial Court has committed error in appreciating evidence of the complainant and his mother with regard to availability of funds for extending loan of Rs.8,00,000/- to the accused. Learned Counsel further submits that the cheque was presented within the period of its validity which stands clarified in Para Nos. 18 and 19 of the evidence of Pramod Chauhan (CW-1). Learned Counsel contends that appellant deserves leave to appeal in this matter.

6. Heard. Perused the record.

7. From study of judgments of Supreme Court on scope of powers of the Court in an appeal against acquittal in the cases of Chandrappa Vs State of Karnataka , (2007) 4 SCC 415 , Murugesan v. State through Inspector of Police , AIR 2013 SUPREME COURT 274, Mookkiah v. State, Rep. by the Inspector of Police, Tamil Nadu , AIR 2013 SUPREME COURT 321, Habib v. State of Uttar Pradesh , AIR 2013 SUPREME COURT 1764, State of Madhya Pradesh v. Dal Singh , AIR 2013 SUPREME COURT 2059 and State of U. P. v. Gobardhan , AIR 2013 SUPREME COURT 3033, following broad principles may be culled out:-

(1). The appellate Court has full power to review, re-appreciate and reconsider the evidence etc.

(2). The code of Criminal Procedure 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on the questions of fact or of law.

(3). The reversal of the acquittal can be made only if the conclusions recorded by the learned trial Court do not reflect a possible view. "Possible view" denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher Court.

(4) The court should interfere only where it finds an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view.

(5) In exceptional circumstances and for compelling reasons the appellate Court should not hesitate to reverse a judgment of acquittal passed by the lower Court, if the findings so recorded by lower Court are found to be perverse, i.e. if the conclusions arrived at by the Court are contrary to the evidence on record, or if the Courts entire appr