25 Nov 2020

The High Court has the power to re-appreciate, review and reconsider the evidence upon which order of acquittal of the trial court is founded - Bombay High Court

Case : Pushpa Sanchalal Kothari v. Aarti Uttam Chavan Criminal Appeal No.322 of 2017

Court : Bombay High Court

Bench : Justice Smt. Vibha Kankanwadi

Decided on : 25 Nov 2020

Relevant Statutes

Sections 378 and 357 of the Code of Criminal Procedure, 1973

Sections 20, 138, and 139 of the Negotiable Instruments Act, 1881

Sections 73 and 18 of the Indian Evidence Act, 1972

Sections 269-SS, 271-D and 273-B of the Income Tax Act, 1961.

Brief Facts and Procedural History

1. The appellant lent a hand loan of ₹80,000/- to the respondent which was discharged by the latter by issuing a cheque 28-03-2013. On the same day, the cheque got dishonoured on the ground of insufficient funds.

2. The complainant issued a notice on 04-04-2013 through the Advocate and demanded the amount under the cheque. After getting a false reply, a complaint was filed before the learned Judicial Magistrate First Class. The respondent was acquitted of the offence punishable under Section 138, Negotiable Instruments Act, 1881 on 17-09-2016 in a summary trial.

3. The appellant then approached the High Court of Bombay under Section 378(4) of the Code of Criminal Procedure, 1973 to challenge the acquittal of the respondent.

The Issues of the Case

Whether the respondent guilty of committing an offence u/s 138, Negotiable Instruments Act, 1881?

The Observations of the Court

1. The statement of the respondent regarding payment of security for chit fund and the absence of entries in the accounts lacks coherence and reliability. Whereas the factum of giving of loan stands established and none of the provisions of the Income Tax Act, 1961 were contravened by the appellant so as to prejudice her case.

2. The complainant had issued statutory notice within the statutory period. It was replied by the accused but not complied with within the statutory period and, therefore, this Court holds the accused guilty of committing an offence punishable under Section 138, Negotiable Instruments Act, 1881. The acquittal of the accused is erroneous and not based on sound legal principles.

3. Though the appellate Court should not take a contrary view merely because two views are possible; but the learned Magistrate had not scanned the evidence properly with sound legal principles and, therefore, interference was required, as observed in Govindaraju alias Govinda v. State by Sriramapuram P. S. & Anr [(2012) 4 SCC 722].

4. In Anwar Ali and others v. The State of Himachal Pradesh [Criminal Appeal No. 1121 of 2016] decided on 25-09-2020 the Supreme Court traced the principles to be followed in an appeal against acquittal under Section 378, Code of Criminal Procedure, 1973:

5. The appellate court has to consider the entire evidence on record, to determine whether the views of the trial court were perverse or otherwise unsustainable or the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.

6. The wrong placing of the burden of proof may also be a subject-matter of scrutiny.

7. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

8. The appellate court would be justified in interfering with a judgment of acquittal if the decision is based on a totally erroneous view of law by ignoring the settled legal position; or conclusions are contrary to evidence and documents on record; or entire approach in dealing with the evidence was patently illegal leading to grave miscarriage of justice.

9. Thus, the High Court has every power to re-appreciate, review and reconsider the evidence in the present case.

10. Keeping in mind the ratio of Kaushalya Devi Massand v. Roopkishore Khore, [(2011) 3 SCR 879] it was held that payment of compensation under Section 357 of the Code of Criminal Procedure to the complainant would be in the interest of justice instead of imprisonment to the respondent since offence under Section 138 of Negotiable Instruments Act, 1881 is a civil wrong which has been given criminal overtones.

The Decision Held by the Court

The Honourable Bombay Court allowed the appeal and held that:

1. Respondent is convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.

2. Respondent is sentenced to pay a fine of ₹1,10,000/- to be deposited before learned Trial Court on or before 1 January 2021. In case of failure to do so, she should undergo simple imprisonment of three months.

3. An amount of ₹1,00,000/- to be given to the complainant under Section 357(1), Code of Criminal Procedure, 1973.

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