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2022 DIGILAW 527 (GUJ)

PATEL PRAKASHBHAI AMBALAL v. STATE OF GUJARAT

2022-04-18

RAJENDRA M.SAREEN

body2022
JUDGMENT : RAJENDRA M. SAREEN, J. 1. This Appeal is filed by the appellant under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 23.08.2017 passed by the learned Additional Chief Judicial Magistrate, Kalol in Criminal Case No.916 of 2014, acquitting the private respondent No. 2 – original accused from the offence punishable under sections 138 of Negotiable Instrument Act. 2. The brief facts of the prosecution case is that the respondent no 2 came upfront in 2005 before the wife of the complainant in his presence at his residential place for explaining the benefits of various post recurring schemes and convinced the wife of the complainant. Then after the wife of the complainant (Raginiben Prakashbhai Patel) convinced the complainant to do the savings in few of the schemes and they have started saving in post recurring in 2005-2006 and this is how the original accused and the complainant had a good bond of family relationship till November 2010. 2.1 The respondent no 2 gained blind trust of the complainant’s family till November 2010 and on the basis of their trustful relationship requested to borrow Rs. 2 Lakhs from the complainant due to some financial crisis with urgency and assured him to return back within a time limit of two and half years by withdrawing her own F.D. 2.2 The complainant lend the amount of Rs.2 lakhs to the respondent No.2 on 12/11/2010 by paying him cheque of AXIS BANK with cheque No.379592. The respondent deposited the same cheque in her own bank account and had withdrawn the cash of Rs.2 lakhs. 2.3. As per the said verbal promise and as per the instructions of the respondent no 2, the appellant demanded for his money in 2013 and the respondent no 2 gave him a cheque dated 15/11/2013 bearing No.120364 of AXIX BANK KALOL BRANCH and assured him for clearance of the cheque to withdraw the money. 2.4. The appellant gave the legal notice through his advocate to the respondent no 2, on 6/12/2013 and the same was served through RPAD. The respondent no 2 gave false and fabricated reply without any genuine grounds on 20/12/2013. 2.5. The appellant filed the complaint on 17/2/2014 u/s 138 of The Negotiable Instruments Act bearing the criminal case no 916/2014 in against of the respondent no 2 (Shah Nutanben Umeshkumar) for the disputed amount of Rs. The respondent no 2 gave false and fabricated reply without any genuine grounds on 20/12/2013. 2.5. The appellant filed the complaint on 17/2/2014 u/s 138 of The Negotiable Instruments Act bearing the criminal case no 916/2014 in against of the respondent no 2 (Shah Nutanben Umeshkumar) for the disputed amount of Rs. 2,00,000/- before the JMFC Court of Kalol, District - Gandhinagar. 2.5. Then after during the expedition of the trail, the complainant gave his deposition at Ex.14. 2.6. Further on the proceedings of the trial, the defence witness named Urveshbhai Shah bank person gave his deposition with producing the specimen signature card at Ex.31 2.7. The disputed cheque was send for the opinion of the handwriting expert as per the Court’s direction at Ex.47. 2.8. The opponent no 2 was acquitted by the Hon’ble JMFC Court of Kalol, District - Gandhinagar, in Criminal case No 916/2014 order passed on 23/8/2017 below Exhibit 57 under sec 138 of The Negotiable Instruments Act ordered on mentioned above date. 3. Mr.Harik Barot, learned advocate for the appellant has submitted that The respondent no 2 original accused came upfront in 2005 before Raginiben and explained the benefits of various post recurring schemes and investments in shares and both the appellants were convinced. Then after, both the appellants had started savings in post recurring and shares in 2005-2006 through the son of the accused named (Mihir) and this is how the original accused and both the appellants had a good bond of family relationship till November 2010. 3.1. Mr.Harik Barot has further submitted that on the basis of their trustful relationship, the accused requested to borrow Rs. 5.16 lakhs in November 2010 from the complainant due to some financial crisis with urgency and assured them to return back within a time limit of 2 and half year by withdrawing her own F.D. 3.2. Mr.Harik Barot has further submitted that both the appellants lend the amount of Rs. 5 lakhs altogether to the accused through different cheques and the said cheques were deposited in accused bank amount and she had withdrawn the amount. The amount of Rs. 16,000/was given in cash on hand. 3.3. Mr.Harik Barot has further submitted that both the appellants lend the amount of Rs. 5 lakhs altogether to the accused through different cheques and the said cheques were deposited in accused bank amount and she had withdrawn the amount. The amount of Rs. 16,000/was given in cash on hand. 3.3. Mr.Harik Barot has further submitted that as per the said verbal promise and as per the instructions of the accused, the appellant demanded for his money in 2013, and the respondent no 2 gave them cheques qua both the petitions respectively and assured them for clearance of the said cheques but those were bounced due to insufficient funds. The legal notice was given and in return, a false and fabricated reply was received. Then after, both the appellants filed the complaint u/s 138 of The Negotiable Instruments Act. 3.4. Mr.Harik Barot has further submitted that the accused had taken the defence that she had forgotten her entire cheque book at the residence of the complainant and then the complainant had misused it. Such defence of the respondent no 2 in reference of the legal notice of the appellant is absolutely frivolous and unbelievable in the eyes of law. 3.5. Mr.Harik Barot has further submitted that in addition, with the same, the respondent no 2 in her reply below Exhibit 20 had also stated that she had warned the appellant to take legal actions, if the cheque is not returned back within a week. 3.6. Mr.Harik Barot has further submitted that no disclosure about any of the aspect stated below anywhere on the records in connection of the lost cheque book through the trial - the disputed cheque was there in the cheque book or not? Was it signed or not? - Was the entire cheque book already signed in advance by the accused or not? - How many numbers of cheques were inside the cheque book? 3.7. Mr.Harik Barot has further submitted that even though, considering all the above aspects, the complainant had not taken any legal action or file any complaint through the trial in connection of the lost cheque book and the complainant misusing the same - proves suspicious about her own behaviour about the disputed cheque. 3.8. 3.7. Mr.Harik Barot has further submitted that even though, considering all the above aspects, the complainant had not taken any legal action or file any complaint through the trial in connection of the lost cheque book and the complainant misusing the same - proves suspicious about her own behaviour about the disputed cheque. 3.8. Mr.Harik Barot has further submitted that amount given by cheque to the accused is a true admissible fact and the same is brought on the records in Iegal notice, complaint, and deposition in general course, and the accused had also admitted the same. 3.9. Mr.Harik Barot has further submitted that when the complainant is lending any amount through cheque, he is not required to produce his books of accounts or maintain the records of such transaction in his books of accounts as it’s not needed at all. 3.10. Mr.Harik Barot has further submitted that moreover, it cannot be presumed that if the appellant has not maintained the books of accounts, then his dues cannot be legal because he had lent the said amount from his last few years of savings. 3.11. Mr.Harik Barot has further submitted that the amount lent by the appellants to the accused by cheque for a period of 3 year and after the said time limit, demanding the same amount as per the promise, the respondent no 2 is paying the same amount by cheque, then it cannot be said that the dues are out of his time limit. 6 - Cheques were bounced due to insufficient funds - Trial court had not believed the Icgal dues of the appellants, though the amount is given by cheque to the accused - As the amount is given by cheque, no need for showing the income-tax statements. 3.12. Mr.Harik Barot has further submitted that the witness named Urveshbhai Shah in the matter of Prakashbhai (criminal appeal no 1517/2017) being the bank person in his deposition, has verified the signature of the accused, but stated that, it may have some variation with the passage of time, as he had brought the very first signature sample of the accused while opening the account, therefore, the cheques were sent before the hand-writing expert and the opinion of the hand-writing expert for this reason only came negative - then also, the hand-writing expert was not examined in connection of the same. 3.13. 3.13. Mr.Harik Barot has further submitted that as such were the circumstances in Prakashbhai’s matter (criminal appeal no 1517), therefore, the prosecution deliberately did not examine the bank witness Urveshbhai in the matter of Raginiben (criminal appeal no 1519) and so the hand-writing expert was also not examined in connection of the same. 3.14. Mr.Harik Barot has further submitted that Instruments Act with cogent evidence, in both the matters. Looking to the facts, merits, circumstances and evidences of the case available on the records, the judgement passed by the Hon’ble JMFC court needs to be quashed and set aside, the accused may be convicted for maximum punishment and the appellant/s deserves to be awarded with the compensation of the disputed cheques amount of Rs. 5.16 lakhs along with the interest. 3.15. Mr.Hardik Barot has further submitted that on the contrary, despite of having such a big lacuna, the document (opinion of handwriting expert) has no evidentiary value, then also The Hon’ble Court had blindly relied on it by giving Exhibit 49 and had considered as proved evidence violating section 293 of Cr.P.C. In this connection he has relied upon the decision of the Orissa High Court in the case of SIBAPRASAD SATPATHI vs. REPUBLIC OF INDIA reported in CRIMES 2011 (4) PAGE 661 in which, it is crystal clear mentioned for not considering the handwriting report as evidence and it will not be maintainable without fulfilling the procedure of the deposition of the handwriting expert. It is further submitted that production and marking of a document as exhibit by the Court can be held to be due proof of its contents. Its execution has to be proved by admissible evidence, i.e., by the evidence of those persons who can vouchsafe for the truth of the facts in issue. In this connection reliance has been placed upon the decicion in the case of STATE OF MAHARASHTRA vs. DAMO GOPINATH SINDE PARAGRAPH reported in CRIMINAL LAW JOURNAL 2000 page 2301. Paragraph 41 of the said decision reads thus: “Exh. 64 is only the opinion of the Asstt. State Examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of Sec. 293 of the Code. Hence, without examining the expert as a witness in Court, no reliance can be placed on Exh. 64 alone. 4. 64 is only the opinion of the Asstt. State Examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of Sec. 293 of the Code. Hence, without examining the expert as a witness in Court, no reliance can be placed on Exh. 64 alone. 4. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that the appellant herein is the original complainant of the complaint filed before the Court of Judicial Magistrate, Kalol as Criminal Case No. 916 of 2014 for the offence punishable under section 138 of the Negotiable Instrument Act. Whereas the Respondent No. 2 herein is the original accused in the said complaint. 4.1. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that the complaint filed by the present appellant by alleging that due to family relation present appellant has given amount of Rs. 2 Lacs to or accused. It is further alleged that at that time the original accused made the promise that he will return the amount after the maturity of his fixed deposit after two and half years. It is further alleged that, after the two and half years the original complainant has demanded the money. Therefore, the accused has issued a cheque dated 15.11.2013 on depositing the said cheque same was returned as unpaid with an endorsement “Insufficient Funds” and same has been informed by the bank of the complainant to him on 20.11.2013 and thereafter on 06.12.2013 demand notice has been issued to the accused. Reply of the demand notice was given by accused. After expire of statutory period complaint came to be filed against the original accused. 4.2. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that the accused has send the reply of demand notice which is exhibited as Exhibit 20 wherein the accused has denied the contention raised in demand notice and specifically stated that as there is a relation between the complainant and himself. As they were is in the business of shares trading together. Therefore cheque book is lying with the complainant and complainant is misused the same. 4.3. As they were is in the business of shares trading together. Therefore cheque book is lying with the complainant and complainant is misused the same. 4.3. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that from the bare reading of oral evidence of complainant who is examined it is come out that, they are doing shares transaction together and also come out that certain shares has been transferred and no other due from accused. 4.4. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that as accused has denied allegations against him in plea also and statement under section 313 has been recorded which is produced as Exhibit 8/A. Wherein also the accused has specifically stated that the cheque book has been misused by the original complainant and by making forged signature cheque has been deposited. 4.5. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that thereafter the Respondent No. 2 herein has examined the bank officer of the Axix Bank at Exhibit 31 wherein also it is come out that there is a dispute regarding sign of the cheque. 4.6. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that the original accused has also made an application for the opinion of hand writing export as the accused has disputed signature on the cheque, therefore application was made at Exhibit 36 and same is objected by complainant by filing objection at Ex.40, as complainant is aware that there is no any signature of accused. However, same has been allowed by the Learned Trial Court and same has been confirmed. Thereafter at Exhibit 42 the specimen signature was taken and by the Hon'ble court same was send to the FSL, Gandhinagar after that at Exhibit 47 report of the FSL has been come in favor of the accused wherein the signature / hand writing of the accused is not matched with the signature on the disputed cheque. Thereby, the original accused has rebutted the presumption as provided under the Act and thereby shifted burden on the original complainant to prove his case. however, thereafter complainant has not led any oral or documentary evidence in support of his case. After that at as original complainant has failed to prove the case order of the acquittal has been passed Exhibit 57. 4.7. however, thereafter complainant has not led any oral or documentary evidence in support of his case. After that at as original complainant has failed to prove the case order of the acquittal has been passed Exhibit 57. 4.7. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that from the inception case of the original accused is that the blank cheque/ cheque book was lying with the complainant has been misused by making forged signature of the accused in cheque and same was deposited. In Reply of the statutory notice as well as in his further statement at Exhibit 8/A specifically stated that forged signature has been made and cheque has been misused. Say of accused has been proved by the FSL report at Exhibit 47 as well Ex.32 to Ex.36. therefore the accused is succeeded in rebut the presumption, thereafter burden shifted on complainant. however, no any evidence has been led by the complainant in support of his case. Therefore accused has been rightly acquitted. 4.8. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that even otherwise by oral as well as documentary evidence complainant has failed to prove his case and failed to bring any cogent evidence, which point out that, the amount of cheque and cheque in question was issued for legally recoverable amount from the accused and whereas the evidence of the accused is proved that cheque was misused and it was not issued for any discharge of legal dues complainant has failed to do the same and on the contrary accused has rebut the presumption and therefore he has rightly acquitted therefore impugned order may not be disturbed. 4.9. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that there is legal presumption under section 139 of the Negotiable Instrument Act that it shall be presumed unless contrary prove that holder of the cheque receive the cheque for discharge any debt or liability. However, the presumption under section 139 is rebuttable presumption and the accused by placing evidence has rebutted the presumption. Therefore cheque in question cannot be said to that it was issue for discharge of any legal dues or liability more particularly evidence speaks that, signature on the cheque is not of the accused. However, the presumption under section 139 is rebuttable presumption and the accused by placing evidence has rebutted the presumption. Therefore cheque in question cannot be said to that it was issue for discharge of any legal dues or liability more particularly evidence speaks that, signature on the cheque is not of the accused. Therefore complainant has failed to bring the case within purview of section 138 of the Negotiable Instrument Act and therefore also this appeal may be rejected. 4.10. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that the Learned Trial Court has recorded the judgment and order of the acquittal after considering the facts and circumstances of the case as well as considering the legal proposition and evidence on record. Even from the record two reasonable conclusion are possible on the basis of evidence on record, The conclusion which is in favor of the accused has to be taken into consideration therefore considering the same also order of the Learned Trial Court may not be disturbed. 4.11. Mr.Chintan Popat, learned advocate for the respondent No.2 has submitted that in the case of CHANDRAPPA AND OTHERS V/S STATE OF KARNATAKA which is reported in 2007 (4) SCC 415 the Hon'ble Apex Court has stated that when two reasonable conclusion are possible on the basis of the evidence on record, the appellate court should not disturbed the findings of the Learned Trial Court. In the said decision, the Hon’ble Apex Court has as under: “The following general principles regarding powers of the appellate court while deciding with an appeal against an order of acquittal emerges (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3)Various expression, such as “substantial and compelling reasons” “good and sufficient ground”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes” etc. are not intended to curtain extensive power of an appellate court in an appeal against acquittal. (3)Various expression, such as “substantial and compelling reasons” “good and sufficient ground”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes” etc. are not intended to curtain extensive power of an appellate court in an appeal against acquittal. Such phraseology are more in nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtain the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however must bear in mind that in case of acquittal, there is doubt presumption in favour of the accused. Firstly, the presumption of innocence is available 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. (5) If two reasonable view are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. 4.12. Mr.Chintan Popat, learned advocate for the respondent No.2 has also relied on the decision of coordinate Bench of this Court in the case of BAJAJ FINANCE LIMITED THROUGH ANIKET PARESH DESAI V/S POOJA NARAYAN KHETAN, reported in 2021 (2) GLR 1757 wherein co-ordinate Bench of This Court has reiterated the law laid down by the Hon’ble Apex Court in the case of CHANDRAPPA AND OTHERS (supra) and further held as under : “6. Though it is true that there is a legal presumption under section 139 of the said Act that it shall be presumed unless the contrary is proved that the holder of cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability, however it is also true that such a presumption under section 139 is a “rebuttable presumption”, as the accused is at liberty to prove to the contrary. 7. A three Judges’ Bench of Supreme Court in the case of Hiten P. Dalal Vs. Bratindranath Benerjee, reported in (2001) 6 SCC 16 , while dealing with the issue of “presumption” under section 139 of the said Act, held as under:- “22. 7. A three Judges’ Bench of Supreme Court in the case of Hiten P. Dalal Vs. Bratindranath Benerjee, reported in (2001) 6 SCC 16 , while dealing with the issue of “presumption” under section 139 of the said Act, held as under:- “22. Because both sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.” 4.13 Mr.Chintan Popat, learned advocate for the respondent No.2 has also relied upon the case of REV. MOTHER MARYKUTTY V/S RENI C. KOTTARAM reported in 2013 (1) SCC 327 . By making above submissions and relying upon above decisions, Mr.Chintan Popat, learned advocate for the respondent has requested not to disturb the impugned judgement and order and dismiss the appeal. 5. Heard the learned advocates for the respective parties and gone through the impugned judgement and order of the trial court as well as the entire material on record. 6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court. 7. Further, in case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 , a three Judges’ Bench of the Supreme Court, reiterating the cardinal principles of criminal justice delivery system, observed as under:- “23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. Vs. 7. Further, in case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 , a three Judges’ Bench of the Supreme Court, reiterating the cardinal principles of criminal justice delivery system, observed as under:- “23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, (1973) 2 SCC 793 , to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system (1) Cr. App.Ho.26 of 1970 decided on August 27, 1973 734 of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which 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 which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.” 8. The Supreme Court in the case of M. S. Narayana Menon alias Mani Vs. State of Kerala and Ors., reported in AIR 2006 SC 3366 , after discussing series of earlier decisions held inter alia that the standard of proof expected from the accused is preponderance of probabilities. The Supreme Court in the case of M. S. Narayana Menon alias Mani Vs. State of Kerala and Ors., reported in AIR 2006 SC 3366 , after discussing series of earlier decisions held inter alia that the standard of proof expected from the accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the material on records but also by reference to the circumstances upon which he relies. He does not have to establish his case beyond a reasonable doubt. Nonetheless, a bare denial of the passing of the consideration or of existence of debt, would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant, as held by the Supreme Court in the case of Kumar Exports V. Sharma Carpets reported in (2009) 2 SCC 513 , in case of Uttam Ram Vs. Devinder Singh Hudan, reported in (2019) 10 SCC 287 etc. 9. The Supreme Court recently in case of Basalingappa Vs. Mudibasappa, reported in (2019) 5 SCC 418 , after elaborately discussing the presumption under sections 118 and 139 and number of other decisions, summarised as under in para No.25: “25. We having noticed the ratio laid down by this Court in above cases on sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- 25.1 Once the execution of cheque is admitted section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2 The presumption under section 139 a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4 That it is not necessary for the accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden. 25.4 That it is not necessary for the accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden. 25.5 It is not necessary for the accused to come in the witness box to support his defence.” 7. On perusal of the record it appears that the court below has acquitted the respondent No.2 – accused on the following grounds; (a) That the appellant had not shown any documentary evidence of the books of accounts and source of income and therefore, it cannot be said that the complainant had lend the disputed amount of Rs.2,00,000/-. (b) That as the handwriting expert had stated in its opinion that it is not the signature of the accused in the said disputed cheque. The trial court relied on the opinion of the handwriting expert and given benefit to the accused. (c) That the last reason for acquittal of the accused recorded by the court below is that the complainant’s family members had purchased shares from the accused and therefore, there were transactions done and because the entire cheque book of the complainant was left over at accused’s residence and hence the same was misused. 8. I have gone through the material on record and on thoughtful consideration I am also of the opinion that the findings recorded by the trial court is just and proper and in consonance with the evidence on record and no other conclusion is possible. 9. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:- “6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 : “8. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:- “6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed: "27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." 28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793 , as is clear from the following observations: "Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations." “9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court." 8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 10. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.