The presumption of issuance of a cheque under the N.I. Act can be rebutted by the accused, and the burden then shifts to the complainant to prove the existence of a legally recoverable debt.

JUDGMENT

1. Appellant who is complainant, has filed this appeal under Sec. 378 (4) of the Cr.P.C, challenging the judgment and order of the Sessions Court in Crl.A.No.113/2016, whereby the Sessions Court reversed the conviction imposed by the trial Court for the offence punishable under Sec. 138 of N.I. Act and acquitted the accused.

2. For the sake of convenience, the parties are referred to by their rank before the trial Court.

3. It is the case of complainant that accused is a developer-cum-builder having business in the name and style of Ittina properties Private Limited. Accused has dealt with complainant with regard to land and received Rs.27.00 lakhs. However, he did not return the said amount on the ground that he has suffered loss. When demanded repayment of the said amount, accused issued a cheque bearing No.701059 dtd. 31/3/2013, drawn on ICICI Bank for Rs.27.00 lakhs. On 14/6/2013, when complainant presented the said cheque for realization, it was returned dishonoured on the ground that the drawer's signature differs. In this regard on the advice of accused, complainant re-presented the said cheque for encashment on 24/6/2013. Once again, it was dishonoured on the ground that signature of the drawer differs.

3.1 Hence, once again, complainant approached the accused. This time accused replaced the cheque number 701059 dtd. 31/3/2013 by another cheque number 032461 dtd. 14/8/2013 drawn on IDBI Bank for a sum of Rs.27.00 lakhs. However, when it was presented for realization, it was also dishonoured on the ground that account is closed. Complainant got issued legal notice dtd. 22/10/2013. It is duly served on the accused. However, he has neither paid the amount due nor sent any reply. Hence the complaint is filed.

4. After due service of summons, accused has appeared before the trial Court and contested the case. He has taken up a specific defence that complainant has purchased three lands from the mother of accused and in that connection he came to be acquainted with the accused. Having regard to the fact that accused is a developer-cum-builder, promising to get lands through the farmers for his work, complainant got a cheque for Rs.27.00 lakhs from him with a promise that he would show it to the farmers and get their title documents. However, misusing the same, he has filed this complaint. Accused has denied of having borrowed a sum of Rs.27.00 lakhs from the complainant and that towards repayment of the same he has issued the cheque in question. He has also disputed that complainant is having capacity to lend Rs.27.00 lakhs to the accused.

5. In order to prove the allegations against the accused, complainant has examined himself as PW-1 and relied upon Ex.P1 to 14.

6. During the course of his statement under Sec. 313 Cr.P.C accused has denied the incriminating evidence.

7. Accused has stepped into the witness box and examined himself as DW-1. He has relied upon Ex.D1 to 6.

8. Vide Judgment and order dtd. 12/1/2016, the trial Court convicted the accused and sentenced him to pay fine of Rs.28, 10, 000.00, in default to undergo imprisonment for three months.

9. Aggrieved by the same, accused approached the Sessions Court in Crl.A.No.113/2016. Vide the impugned judgment and order, the Sessions Court allowed the appeal and set aside the conviction and sentence of accused.

10. Being aggrieved by the same, the complainant is before this Court, contending that the Sessions Court committed a grave error while allowing the appeal filed by the accused and as such it is liable to be set aside. The complainant has made a transaction with the accused in his individual capacity as evident from Ex.P13. Such being the case, the Sessions Court has erred in giving a finding that the transaction was with the company and as such it was a necessary party and the impugned judgment and order is liable to be set aside and prays to allow the appeal.

11. Heard elaborate arguments of both sides and perused the record.

12. Though the complainant