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2019 DIGILAW 2939 (RAJ)

Pushpa Devi v. Hanuman Ram

2019-12-09

SANDEEP MEHTA

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JUDGMENT Sandeep Mehta, J. - Heard. 2. Perused the material available on record. 3. The instant application for grant of leave to appeal has been preferred by the appellant Smt. Pushpa Devi for assailing the judgment dated 14.11.2018 passed by the learned Special Judicial Magistrate (NI Act Cases), Pali in Original Criminal Case No.230/2016, whereby the respondent-accused was acquitted from the charge under Section 138 of the NI Act. 4. I have heard and considered the submissions advanced by learned counsel for the parties and have gone through the impugned judgment and the original record. The applicant-complainant filed the complaint with the allegation that the she had given a hand loan of Rs. 9,00,000/- to the accused in the month of July 2015. The accused handed over a Cheque No. 035489 dated 14.09.2015 of Union Bank Of India, Pali Branch to her for returning the same amount. However, when the cheque was presented in the Bank, the same was dishonoured owing to insufficient funds. In cross examination conducted from the complainant, she admitted that she had no source of income. Her husband used to drive a truck and he too had passed away about three years ago. The accused was her brother-in-law. The defence gave a clear suggestion to the complainant that the cheque in question was given to her by one Yusuf Bhai. 5. In this view of the matter, I am in consonance with the findings recorded by the trial court that the complainant had no financial capacity to give the hand loan for a huge sum of Rs.9,00,000/- to the accused. Thus, the complainant failed to prove the existence of a legally enforceable debt against the accused. This view is fortified by the observations made by Hon'ble the Supreme Court in the case of Basalingappa vs. Mudibasappa reported in, (2019) 5 SCC 418 , para Nos. 28 & 29 whereof are reproduced herein below for the sake of continence:- 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. 6 lakhs given to the Accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression "perverse" in Gamini Bala Koteswara Rao and Ors. v. State of Andhra Pradesh through Secretary, this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No. 14 following has been held: "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr. Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so." 29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that Accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We are, thus, satisfied that Accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable." 6. In view of the above discussion, I find no merit in this application for grant of leave to appeal, which is dismissed as such. The record be returned to the trial court.