The presumption under Section 139 of the Negotiable Instruments Act that a cheque is issued in discharge of debt or legal liability can be rebutted by specific defense and evidence from the accused.

Heard learned advocates for respective parties.

2. By this application, applicant-original complainant seeks leave to prefer appeal against acquittal.

3. This applicant had filed complaint alleging offence under Section 138 of Negotiable Instruments Act. According to complainant the complainant carries on business. The accused from to time from 2000 purchased goods on credit and for the outstanding dues of Rs.1,95,370/- accused issued cheque No.17352. Lateron this cheque came to be dishonoured. Hence demand notice was issued but claim not being satisfied, complaint alleging offence under Section 138 of Negotiable Instruments Act came to be filed.

4. The complainant in support of his case examined himself and placed reliance on the cheque and notice. Since beginning by giving notice reply the accused put forth defence that he had no transaction at all with the complainant and he had issued this cheque alongwith five other cheques to the son of the complainant and one of the cheques is being misused by present complainant. At the trial the complainant admitted that he is having no documentary evidence to show that he had transaction with the accused or to show that dues are outstanding. Not only this but he admits that he had no loan transaction or any other transaction with the accused. Accused has produced on record the counter foils of the cheque books which show that the son of the complainant put signature on the counter foils and in relation to one cheque complainant’s son also filed complaint alleging offence under Section 138 of Negotiable Instruments Act. To prove the transaction with the accused complainant did produce on record one income tax return and balance sheet. However, it was found to be a return to some other business not run by this complainant. Considering these facts, the trial Court came to the conclusion that the presumption arising under Section 139 of Negotiable Instruments Act is rebutted and the complainant failed to prove the debt or legal liability and judgment of acquittal came to be recorded.

5. On behalf of complainant learned advocate Shri Vinod made submission that once the fact of issuance of cheque is established there is presumption under Section 139 of Negotiable Instruments Act that it was issued in discharge of debt or legal liability and the burden is on the accused to rebut the said presumption. He has stated that there is no evidence from the accused in rebuttal of the said presumption. Hence acquittal is not sustainable. There cannot be any dispute that if the fact of issuance of cheque in favour of complainant is established or admitted then presumption under Section 139 of N.I.Act arises that it is issued for extending debt or legal liability. In the present case accused since before lodging of this complaint came with specific defence that he had no transaction with the complainant at all. He also denied the fact of issuance of cheque to the complainant but his defence is specific that the cheque came to be issued in favour of complainant’s son. This fact is corroborated by the counter foils produced on record which counter foils of the cheque in dispute bear signature of complainant’s son. It is not a case of the complainant that this cheque is collected by his son from the accused. When such a defence is put forth it was easy for the complainant to produce on record the extract of account or any other document. Attempt is made to produce certain documents like income tax returns and the statement of accounts. By his own admission it is found that those income tax returns and the balance sheet produced by him are not relating to his own business. This shows his falsehood. When he admits that he is not possessing any document to show any transaction with the accused and when this cheque in question is found issued in favour of his son, the presumption arising under Section 139 of N.I. Act stands rebutted.

6. In these circumstances, acquittal cannot be said to be perverse a