Gauhati High Court
Rumi Hazarika vs Anirban Hatikakoty on 12 October, 2015
IN THE GAUHATI HIGH COURT
(The High Court of Assam: Nagaland: Mizoram & Arunachal Pradesh)
Crl. Appeal No. 87/2008
Smti Rumi Hazarika
W/o- Late Debo Hazarika
R/o- Bahgora, P.O.- Mezenga,
Mouza- Nazira, Dist.-Sivasagar, Assam.
......... Appellant
-Versus-
Sri Anirban Hatikakoty
S/o- Surendra Nath Hatikakoty
Ward No. 3, Nazira Town,
P.O.- Nazira, Dist.- Sivasagar, Assam.
.........Respondent
PRESENT HON'BLE MR. JUSTICE C.R. SARMA For the Appellant : Mr. P.J. Sakia, Advocate.
For the Respondent : Mr. S. K. Medhi, Advocate.
Date of Hearing : 22.07.2015.
Date of Judgment : 12.10.2015
JUDGMENT & ORDER (CAV)
(C.R. Sarma, J)
(1) This appeal, under Section 378(i) of the Cr.P.C., 1973 (for short,
Cr.P.C.), is directed against the judgment and order, dated 07.01.2008, passed by the learned Judicial Magistrate 1st Class, Sivasagar, in CR Case No. 265/2006 under Section 138 of the Negotiable Instrument Act, 1881 (for short, NI Act), whereby the Crl A 87 of 2008 Page 1 of 20 learned Magistrate, at the conclusion of the trial, acquitted the accused person and set him at liberty.
(2) Aggrieved by the said judgment of acquittal, the complainant, as appellant, has come up with this appeal.
(3) The complainant's case, may, in brief, be stated as follows:
The accused person i.e. the respondent, on 01.07.2005, took an amount of Rs.5 (five) Lakh as loan from the complainant with assurance to repay the same with an interest of Rs.20,000/- and accordingly, he issued a post dated cheque, dated 15.09.2006, amounting to Rs.5,20,000/- only. In due course, due to failure on the part of the respondent to pay the said amount, the complainant, on 18.09.2006, presented the said cheque with the Kanara Bank, Sivasagar Branch for encashment. But, the cheque was dishonoured due to insufficient fund, for which, the complainant issued a notice to the respondent demanding payment of the cheque amount within 15 (fifteen) days from the date of receipt of the notice. On receipt of the said notice, the accused person, by issuing a reply, denied the complainant's claim that he had taken the loan from the complainant.
(4) In view of the said denial, the appellant, as complainant, filed a complaint under Section 138 of the NI Act, in which cognizance was taken. The complainant, in order to prove her case, examined 2 (two) witnesses including herself. At the close of the prosecution evidence, the accused person was examined under Section 313 Cr.P.C. He denied the allegations of taking loan of Rs.5 Lakhs from the Crl A 87 of 2008 Page 2 of 20 complainant and issuance of a cheque for Rs.5,20,000/- in her favour. He examined 3 (three) witnesses as defence witness. Considering the evidence, on record, the learned Magistrate framed the following points for determination:
"1. Whether the accused person issued a cheque bearing No. 0411899 of Canara Bank, Sivasagar, amounting to Rs.5,20,000/- (Rupees five lacs twenty thousand only) to the complainant for payment of the debt?
2. Whether the said cheque, issued by the accused, was dishonoured by the Canara Bank for ' insufficiency of Fund in the account'?
(5) Considering the evidence, on record, the learned Magistrate came to the findings that the complainant failed to prove that she had given an amount of Rs.5 Lakhs to the accused on 01.07.2005 and that the accused had issued the cheque for an amount of Rs.5,20,000/-. With the above findings, the learned Magistrate acquitted the accused person. Hence, this appeal.
(6) I have heard Mr. P.J. Saikia, learnd Counsel, appearing for the appellant and Mr. S. K. Medhi, learned Counsel, appearing for the respondent. I have also perused the evidence, on-record and the impugned judgment and order.
(7) Mr. Saikia, learned Counsel for the appellant, referring to the evidence on record as well as the statement made in the complaint, has submitted that the respondent had taken an amount of Rs.5 Lakhs as Crl A 87 of 2008 Page 3 of 20 loan and issued a blank cheque, which was filled up by the driver of the complainant in presence of the respondent and that the cheque, being tendered with the bank, was dishonoured for want of fund.
(8) Therefore, it is submitted that the respondent, who admitted his signature in the said cheque, is liable to pay the cheque amount. It is also submitted that the petitioner, being the holder of the said cheque, the learned Magistrate committed error by failing to draw presumption under Sections 118(A) and 139 of the NI Act. Further contention raised, on behalf of the appellant, is that the accused has failed to rebut the presumption and as such the learned trial Judge committed error of law by failing to draw presumption against the accused person. Therefore, it is submitted that acquittal of the accused being in fragrant violation of the provision of law, the impugned judgment and order is liable to be set aside.
(9) The learned Counsel for the appellant, in support of his contention, has relied on the following decisions:
(i) K.N. Beena -Vs.- Muniyappan and Another, reported in (2001) 8 SCC 458;
(ii) K. Bhaskaran -Vs.- Sankaran Vaidhyan Balan and another, reported in AIR 1999 SC 3762 (1);
(iii) Mallavarapu Kasivisweswara Rao -Vs.- Thadikonda Ramulu Firm and Ors. reported in AIR 2008 SC 2898; and
(iv) Kundan Lal Rallaram -Vs.- Custodian, Evacuee property, reported in AIR 1961 sc 1316.Crl A 87 of 2008 Page 4 of 20
(10) Controverting the said argument, advanced by the learned Counsel for the appellant, Mr. S. K. , Medhi, learned Counsel, appearing for the respondent, has submitted that the complainant failed to adduce substantive evidence in support of her claim that the respondent had taken Rs.5 Lakhs as loan and that he had issued a cheque for Rs.5, 20,000/- against the said loan. It is contended that the respondent had given a blank cheque to his mother for meeting the medical expenses of his father and that the complainant, who had cordial relation with the family of the accused, had paid an amount of Rs.50,000/- to the mother of the accused and received the said blank cheque from his mother; but despite repayment of the said loan, she had retained the cheque and deposited the same with the bank for encashment, after entering the figure Rs.5,20,000/- in the said cheque. It is also submitted that the appellant failed to prove, by adducing sufficient evidence, that the respondent had issued a cheque of Rs.5,20,000/- against loan amount of Rs.5 Lakh. It is further contended by the learned Counsel that, in view of the complainant's failure to prove the fact of advancing loan of Rs. 5 Lakh and issuance of cheque for Rs.5.20 Lakh, no presumption under Sections 118 and 139 of the N.I. Act can be drawn in favour of the complainant.
(11) In view of the above, it is submitted that the learned trial Judge committed no error or illegality, warranting interference with the impugned judgment and order.
(12) The learned Counsel for the respondent, in support of his contentions, has relied on the following decisions:
Crl A 87 of 2008 Page 5 of 20(i) M.S. Narayana Menon alias Mani -Vs.- State of Kerala and Another; reported in (2006) 6 SCC 39;
(ii) C. Antony -Vs.- K.G. Raghavan Nair, reported in (2003) 1 SCC; and
(iii) Rangappa -Vs.- Sri Mohan, reported in (2010) 11 SCC 441. (13) Having heard the learned Counsel, appearing for both the parties and perusing the materials, on-record, it is found that it is the case of the complainant that the respondent had taken an amount of Rs.5 Lakh with assurance to repay the same with an additional amount of Rs.20,000/- as interest and accordingly he had issued her a post dated cheque ( dated 15.09.2006) for Rs.5,20,000/-, which was dishonoured by the bank. The complainant has exhibited the said cheque as Ext. 2 and the signature of the accused as Ext. 2 (1).
(14) There is no dispute that the cheque, on being tendered with the bank, was dishonoured for insufficient fund. The respondent i.e. the accused person also has not denied his signature in the cheque. The plea of the accused person was that, in connection with his father's medical treatment in the hospital, his mother needed money and as such, he had given her a blank cheque and the appellant, who volunteered to give Rs.50,000/- in cash, to the mother of the appellant had given her Rs.50,000/- as loan and retained the cheque as security, but despite repayment of the said amount, the appellant had tendered the cheque with the bank, after inserting the figure Rs.5,20,000/-, therein.
Crl A 87 of 2008 Page 6 of 20(15) As stated by the P.W. 2 i.e. the complainant, on 01.07.2015, she had visited the residence of the respondent and gave the accused an amount of Rs. 5 Lakh in presence of his mother and the driver of the complainant. She also stated that her driver had counted the money and that the blank cheque, which was signed by the accused, was filled up by her driver Sri Jintu Neog. The complainant also stated that she had an amount of Rs.2,50,000/- as cash in hand and that she had withdrawn Rs.1 Lakh from her SBI Account and borrowed an amount of Rs.2,50,000/- from Sri Anupam Bharali. She denied the suggestion, put to her on behalf of the defence, that she had given Rs.50,000/- only by taking a blank cheque and that despite repayment of the said amount, she had tendered the cheque with the bank after inserting the amount of Rs.5,20,000/- in the said blank cheque.
(16) PW-1 was the Manager of the bank, which dishonoured the said cheque. He, in his evidence, stated that the cheque could not be honoured due to insufficient fund.
(17) The accused person, deposing as DW-1, stated that, as his father was in hospital, his mother needed money and as such he gave her a blank cheque. It is also stated by DW-1 that the complainant, who had visited the house of DW-1 volunteered to pay his mother an amount of Rs.50,000/- and accordingly, she took the said blank cheque, as security, after paying Rs.50,000/- to his mother. He denied the suggestion that he had given the blank cheque to the complainant.
Crl A 87 of 2008 Page 7 of 20(18) The mother of the accused, who deposed as DW-2, supporting the evidence of DW-1, stated that, as she needed money for treatment of her husband, her son i.e. accused person had given her a blank cheque for withdrawing money from the bank. She also stated that the appellant, who visited her, on the said date, gave her Rs.50,000/- subject to the condition that she would be required to pay Rs. 10,000/- more. She also stated that the appellant had kept the cheque with her, without encashing the same, with the assurance that the same would be returned upon repayment of Rs.50,000/-. Despite cross-examination, the evidence, given by the PW-1 and DW-2, remained undemolished.
(19) Smti Jolly Hazarika, mother in law of the elder brother of the accused person, deposing as DW-3, stated that she had no relation with the complainant.
(20) From the above evidence, it appears that the complainant i.e. the appellant claimed that she had paid an amount of Rs.5 Lakh in presence of her driver and that for arranging the said amount she had taken an amount of Rs.2,50,000/- from one Mr. Anupam Bharali. Her further contention was that the said blank cheque, signed by the accused person was filled up by her driver. On the other hand, the plea of the accused person was that an amount of Rs.50,000/- was taken by his mother from the complainant and that she had given the said blank cheque to complainant. Therefore, it is found that there is no dispute that the accused person had signed the concerned cheque. Admittedly, the cheque, at the time of signing the same by the account holder i.e. the accused person was a blank cheque. The Crl A 87 of 2008 Page 8 of 20 drawer of the cheque did not put the amount in the said cheque and the amount of Rs. 5.20 Lakh was inserted by the Driver of the complainant.
(21) The contention of the appellant is that the appellant, being the holder of the cheque for Rs.5.20 Lakh and the cheque being signed by the accused person, the trial Court ought to have draw presumption under Section 118A and 139 of the NI Act and hold that the accused had issued the said cheque against the loan amount of Rs.5 Lakh.
(22) In the case of K. N. Beena (Supra), the Supreme Court held that in view of Sections 118 & 139, Court has to presume that the cheque has been issued for discharging a debt or liability and that the presumption is rebuttable. It has also been held that mere denial in the reply to legal notice is not sufficient and the accused has to adduce evidence to prove that there was no debt or liability.
In the said case, trial Court convicted the accused. On appeal, the learned Sessions Judge dismissed the appeal, but the High Court, on revision, set aside the conviction and acquitted the 1st respondent on the ground that the appellant had not proved that cheque was issued for any debt or liability. The said acquittal, being challenged, the Supreme Court held that the said approach of the High Court was erroneous. The Supreme Court held that it was the burden of the accused to prove that the cheque ws not issued for any debt or liability and the accused not having led any evidence, could not be said to have discharged the burden cast on him Crl A 87 of 2008 Page 9 of 20 (23) In the Case of K. Bhaskaran (Supra), the Supreme Court has held that once the signature of the cheque is admitted to be that of the accused the presumption under Section 118 can be drawn and u/s 139 Court, it can be presumed that holder of the cheque received it for the discharge of any debt or liability and that the said presumption is to be rebutted by the accused by adducing evidence.
(24) In the case of Mallavarapu Kasivisweswara Rao (Supra), the Supreme Court observed that under Section 118(a) of the N.I. Act, the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration.
However, the presumption u/s 118 (a) is rebuttable and this burden can be discharged either by direct evidence or circumstantial evidence. The standard of proof is not very high, it is preponderance of probability. In fact, the accused is to show the improbability of the existence of consideration.
(25) In the case of Kundan lal Rallaram (Supra), it was argued, before the Supreme Court, that the respondent did not produce any evidence in rebuttal and as such the findings of the Custodian General of Evacuee Property, that the presumption, under Section 118 of the N.I. Act, that the consideration had passed for the endorsement of the promissory note was rebutted, was erroneous. The Supreme Court, dealing with the question as to how the burden can be discharged, referred to the rules of evidence embodied in Chapter 7 of the Evidence Act and observed that evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary Crl A 87 of 2008 Page 10 of 20 evidence or admission made by opposite party; it may comprise circumstantial evidence or presumption of law or facts. The Supreme Court observed -"under Section 101 of the evidence Act, whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those fact exist ". It has also been observed by the Supreme Court that the burden initially rests on the plaintiff, who has to prove that the promissory note was executed by the defendant and as soon as the execution of the promissory note is proved, the presumption laid down in section 118 of the Negotiable Instrument Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, Section 118 of the Negotiable Instrument Act imposes a duty on the Court to raise a presumption in favour that the instrument was made for consideration.
In the said Case, the Supreme Court also observed that adverse inferences can be drawn against a party, which deliberately with holds better evidence.
In the above cited case, the appellant had wilfully withheld documentary or oral evidence to prove that consideration was passed. In view of such withholding of evidence, it was held by the Supreme Court that the custodian Guardian General rightly held that the presumption, laid under Section 118 of the N.I. Act, stood rebutted.
(26) In the case of M .S. Narayana Menon (Supra), the Supreme Court held that in a case u/s 138 of the N. I. Act, the initial burden is on the Crl A 87 of 2008 Page 11 of 20 accused to rebut the presumption drawn u/s 118 (a) and 139. It has also been held that in the event of discharging such initial burden, the burden shifts to the complainant. It has also been held that the standard of proof, on the accused, is not as heavy as that of the prosecution. To discharge the said burden, the defendant may either adduce direct evidence or refer to the circumstances upon which relies. It is sufficient if he can bring on record the preponderance of probability. He can rely on the evidence given by the plaintiff also. As held in the said case, if the defendant fails to discharge the initial onus of proof of showing the non-existence of the consideration, the plaintiff will be held entitled to the benefit of presumption u/s 118 in his favour.
In the said case, the Supreme Court referred to follow the observations made in the case of V. D. Jhingar -Vs.- State of Uttar Pradesh, reported in AIR 1966 SC 1762.
"It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to proof his case beyond a reasonable doubt."
(27) As held by the Supreme Court, a presumption is a probable inference which in common sense draws from circumstances usually occurring in such cases. It is of the nature of probability. A presumption is an inference as to the existence of a fact and it is a probable consequence drawn from facts as to the truth of a fact alleged, but of which there is no direct proof.
Crl A 87 of 2008 Page 12 of 20(28) In the case of Rangappa (Supra), the Supreme Court discussing the standard and manner of giving rebuttal evidence against the presumption to be drawn under Sections 118 and 139 of the N.I. Act observed, " .............it is settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities."
(29) Therefore, as held by the Supreme Court, if the accused succeeds to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. For such rebuttal, the accused can rely on the materials submitted by the complainant and may not need to adduce evidence of his/ her own.
(30) In view of the above, propositions of law and the principles laid down by the Apex Court, in the case at hand, it is to be examined if the complainant could prove that she had given Rs. 5 Lakh to the accused person as loan and if the accused also had issued the cheque against the said consideration and whether the accused could rebut the presumption that the cheque was issued against the said consideration.
(31) The contention of the complainant is that the accused, being in need of money, had taken loan of Rs. 5 Lakh from her with promise to repay the same with interest of Rs. 20,000/- and accordingly, he issued a post dated cheque of Rs. 5.20 Lakh. Refuting the said contention, the defendant contended that he had given, his mother, a blank cheque to meet the medical expenditure of his father and the complainant, who had visited his house, on the said date, gave his Crl A 87 of 2008 Page 13 of 20 mother an amount of Rs 50,000/- on the condition that the said amount would have to be repaid with an additional amount of Rs. 10,000/- and accordingly, she had retained the said cheque. According to the accused person, though the said money was repaid, the complainant refused to return the cheque, on the plea that another amount of Rs. 5,000/- was required to be paid and she had fraudulently inserted Rs. 5.20 Lakh in the said blank cheque to show that Rs. 5.20 Lakh was due to be repaid.
(32) In order to draw presumption under Sections 118 and 139 of the N.I. Act, it was the burden on the complainant to adduce convincing evidence to prove that the cheque was issued by the accused person by taking an amount of Rs.5 Lakhs, as loan.
In order to prove the claim that the accused had given the cheque after receiving an amount of Rs. 5 Lakh, as loan, the complainant stated that the money was given, on 01.07.2005, in the house of the accused and besides herself, her Driver, the accused and the mother of the accused were present.
(33) In the Case of Kaliram v. State of H.P., reported in (1973) 2 SCC 808, the Supreme Court has observed:
"One of the cardinal principles w hich has alw ays to be kept in view in our system of adm inistration of justice for crim inal cases is that a person arraigned as an accused is presum ed to be innocent unless that presum ption is rebutted by the prosecution by production of evidence as m ay show Crl A 87 of 2008 Page 14 of 20 him to be guilty of the offence w ith w hich he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in w hich statutory presum ptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts w hich have to be present before the presum ption can be draw n. Once those facts are show n by the prosecution to ex ist, the court can raise the statutory presum ption and it w ould, in such an event, be for the accused to rebut the presum ption. The onus even in such cases upon the accused is not as heavy as is norm ally upon the prosecution to prove the guilt of the accused. If som e m aterial is brought on the record consistent w ith the innocence of the accused w hich m ay reasonably be true, even though it is not positively proved to be true, the accused w ould be entitled to acquittal."
(34) In view of the decision, held in the Cases of Kali Ram (Supra) and Kundan Lal Rallaram (Supra), it is the primary burden of the complainant to prove that the accused had taken the loan of Rs. 5 Lakh and issued a post dated cheque for Rs.5.20 Lakh. The presumption regarding guilt of the accused would come, once the complainant succeeds to prove the existence of the fact relating to payment of the amount. The presumption U/S 118 and 139 can be rebutted by the accused by adducing direct or circumstantial Crl A 87 of 2008 Page 15 of 20 evidence. Even, he can rely on the evidence, given by the complainant and the standard of proof is pre-ponderance of probability.
(35) In view of the principles, laid down in the case of Mallavarapu Kasivisweswara Rao (Supra), the accused is required to show the improbability of the existence of consideration of Rs.5.20 Lakh.
(36) As stated by the complainant, the amount of Rs.5 Lakhs, given by her as loan to the accused person was counted by herself and her Driver and the blank cheque was written by the said Driver. Therefore, in order to substantiate the complainant's claim, that the cheque was issued against an amount of Rs.5.20 Lakh and that Rs. 5 Lakh was given to the accused person, the said driver i.e. the writer of the cheque was the best person to prove the said claim of the appellant. But, for reasons best known to the complainant, she withheld the said witness, without any explanation.
(37) In view of the decision, rendered by the Supreme Court, in the case of Kundan Lal Rallaram (Supra), none examination of such vital witness raises doubt about the prosecution version itself. This lapse, on the part of the complainant leads to adverse interference against the complainant. Withholding of such a better witness raises doubt about the veracity of the prosecution version.
(38) There is no corroboration in the evidence of PW-2 to believe that the cheque was issued after taking an amount of Rs.5 Lakhs. On the other hand, there is sufficient corroboration in the evidence given by DWs- 1 and 2 inspiring confidence to believe that a blank cheque was given Crl A 87 of 2008 Page 16 of 20 by the accused to his mother and that his mother i.e. DW-2 had taken an amount of Rs.50,000/- from the complainant by giving her the said cheque. Though the DW-1 and DW-2 were cross-examined, on behalf of the complainant, their said evidence regarding taking of Rs.50,000/- and giving the blank cheque after taking an amount of Rs.50,000/- remained unshakened. None of the witnesses supported the evidence, given by the DW-2.
(39) Hence, there is no corroboration in the evidence of the complainant (PW2) to believe, her evidence, that she had paid Rs. 5 Lakh as loan to the accused; that the accused gave a blank cheque and that her Driver had filled up the said cheque by putting the amount of Rs. 5 Lakh, therein.
(40) That apart, in order to show the availability of the said amount, on the date of actual delivery, the complainant stated that, she had a cash amount of Rs. 2.5 Lakh, that she had withdrawn Rs. 1(one) Lakh from her bank account and that she had borrowed Rs. 1 (one) Lakh from one Mr. Anupal Bharali. In order to substantiate the said claim, she could have prove her bank statement and examine Mr. Anupal Bharali. But she failed to do so. Hence she failed to prove that she had that amount, on the relevant for lending to the respondent.
(41) In the light of the decision held in the case of Kundan Lal Rallaram (Supra) it can be held that the complainant failed to adduce better evidence. In view of withholding of the said vital witness, adverse inference can be drawn against her claim. Hence, it is doubtful if she had paid Rs. 5 Lakh to the accused on the said date.
Crl A 87 of 2008 Page 17 of 20On the other hand, both the DW1 i.e. the accused and his mother (DW 2) stated that the complainant had taken a blank cheque giving the accused Rs. 50000/- in cash. The said defence witnesses corroborated each other evidence on material point. Despite cross examination, their evidence remained unshakened.
(42) The complainant in the complaint filed u/s 138 N. I .Act averred that the accused had taken the loan of Rs. 5 Lakh on 01.07.2005 promising to repay the same with interest of Rs. 20,000/- and issued a post dated cheque dated 15.09.06.
(43) In the complaint, in the notice and in her evidence, the complainant used the word " dated ". Her said statement, that the loan was taken on 01.07.2005 and a post dated cheque was issued, indicates that the said post dated cheque was issued on 01.07.2005 itself i.e. the date on which the money was given. Because, she did not state in her said statement that the cheque was issued on a subsequent date i.e. 15.09.2005.
But the complainant, in her cross-examination, deviated from her earlier statement and stated that the money (i.e. the loan) was taken by the accused on 01.07.2005 and the cheque was issued on 15.09.2006. This statement, which is found to be contradictory to her earlier statement, clearly indicates that the taking of money and issuing the cheque took place on the two different dates. She failed to state or explain as to under what circumstances, or for what reason, the cheque was issued on a subsequent date i.e. on 15.9.2006.
Crl A 87 of 2008 Page 18 of 20(44) In her in-chief-examination, the complainant stated that the money was paid by her on 1.7.2005 in the house of the accused and that her Driver Sri Jintu Neog, who was with her, had counted the money with her and that the Driver had filled up the cheque. She did not state that her said Driver was present on 15.09.2006 also. If the cheque was given on 15.9.06 then it is not known, how could her Driver filled up the same on 15.9.2006. Her in-chief-examination indicates that the post dated cheque was given on the date of taking the loan by the accused i.e. on 01.07.2005 and the Driver, who had filled the cheque and counted the money. Her subsequent statement that the cheque was given on 15.9.2006 stood contradicted by her earlier statement. This contradiction raises doubt about the veracity of her evidence that the post dated cheque was given to her on 01.07.2005 by the accused, after receiving Rs. 5 Lakh and that the same was filled by her driver, in presence of the accused.
(45) The above contradiction sufficiently supports the plea of the accused person that Rs.50,000/-only was taken by his mother and that, in the blank cheque, the amount Rs. 5.20 Lakh was subsequently inserted.
(46) Hence, I find sufficient material to hold that the complainant failed to substantiate, by adducing cogent and convincing evidence that the accused had issued the said cheque for Rs. 5.20 Lakh, after receiving a loan of Rs. 5 Lakh from her.
(47) In view of failure of the complainant to adduce better evidence and the unimpeacheable evidence, given by DW1 and DW2, I find no difficulty in holding that the accused could negate the probabliliy of payment of Crl A 87 of 2008 Page 19 of 20 Rs. 5 Lakh and thus, successfully rebutted the presumptions u/s 118 and 139 N.I. Act.
(48) In the case of C. Antony (Supra), the Supreme Court, discussing the scope of the High Court, in deciding an appeal against acquittal, held that High Court has the obligation to come to a definite conclusion that the findings of the trial Court were either perverse or contrary to the material on record, because the High Court can't substitute its findings merely because another contrary opinion is possible. It has also been held that if two reasonable conclusions can be reached, on the basis of the evidence on record, the appellate Court should not disturb the findings of the trial Court.
(49) I find that the learned Trial Court has correctly appreciated the evidence, on record, and the findings rendered by the trial court is neither contrary to the material, on record, nor perverse. The conclusion held by the Trial Court is based on evidence, on record.
(50) In view of the discussion, made above, I find no merit in this appeal requiring interference with the order of acquittal. Hence, the appeal is dismissed.
(51) No cost. Return the LCR.
JUDGE Kishor Crl A 87 of 2008 Page 20 of 20