Mere distorted version or mere taking up the plea or the defence that accused is not liable to pay any amount or be discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt.
The present appeal was against order of acquittal of accused from the offence punishable under Section 138 of Negotiable Instruments Act. The question arose before the Court was whether the Appellant has made out any reasonable or substantial ground to interfere with the Judgment of acquittal recorded by the Trial Court?
Appellant contended that in view of the materials on record including the cross-examination of the complainant and the evidence of the accused, the accused had admitted the transaction between himself and the complainant and the accused took the plea as defence that the cheque which was presented by the complainant to the Bank was forged one and the said cheque was forged by his brother’s son. The second contention taken up by the accused was that he has repaid the entire amount under the cheque on different dates by way of other cheques and cash payment and since there was absolutely no amount due, he did not reply the legal notice issued under Section 138 of N.I. Act.
The Court referred to the principles laid down by Supreme Court in its recent decision between S. Govindaraju vs. State of Karnataka where it was laid down that in exceptional circumstances, the Appellate Court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse and while doing so, the Appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence.
The Court held that the initial presumption under Sections 118 and 139 of Negotiable Instruments Act cannot be said to have been rebutted by the accused. The accused need not rebut the presumption beyond all reasonable doubt as it is incumbent upon the complainant to prove his case beyond reasonable doubt. Still the accused has to place sufficient materials to convince the Court that his case is probabilised when it is compared with the case of the complainant and if accused fails then only such materials should be accepted. Mere distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt.
It was accordingly held that the Trial Court committed a serious error in appreciating the legal aspects and as well as the factual aspects and came to a wrong conclusion.
[Sripad vs. Ramadas M. Shet]
(Karnataka HC, 02.06.2014)