Approach of Appellate Court in Cases of Cheque-Dishonour under Section 138 of Negotiable Instruments Act, 1881

Approach of Appellate Court in Cases of Cheque-Dishonour under Section 138 of Negotiable Instruments Act, 1881 

Section 138 - Approach to be Adopted by Appellate Court - Financial Capacity of the Complainant -  Accused "A" argued that Complainant "C" failed to establish the fact that he was having sufficient fund - Even in his deposition, "C" has admitted that he was not having any bank account so from where he collected the amount of Rs.83,000/- and no document was produced by "C" with regard to his salary and out of his salary how he has saved money. In those days being a driver of the truck, whether it was possible to earn and save the amount to advance to the others and this fact was not replied by "C" in High Court also - In the cross-examination, the complainant has admitted that he was not having any bank account and earning Rs.3,000/- per month from the transportation work. If the complainant was earning Rs.3,000/- per month, for which he has not produced any relevant document to the said aspect at that relevant point of time -  On perusal of the cross examination of the complainant, it appeared that he has admitted that he was working with the accused as driver and driving the truck bearing registration No.GJ-9-5000 and even prior to 2001, he was driving the truck of the accused -  The story put forward by "C" was rightly disbelieved by the trial Court and after examining oral as well as documentary evidence, the learned Magistrate has right passed the impugned judgment and order of acquittal - Held, "an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused are connected with the commission of the crime with which he is charged" - Acquittal of accused held to be justified. - Amaratji Bhathiji Parmar v. State of Gujarat [2024] GCtR 3461 (Gujarat)