1. This appeal is directed against the judgment and order dated 27.2.2009 rendered by the Special Court, Nagpur, under Section 138 of the Negotiable Instruments Act ( in short “the N.I. Act”) in Criminal Case No.9182 of 2007, whereby the complaint of the appellant has been dismissed and respondent/accused has been acquitted of offence punishable under section 138 of the NI Act.

2. Appellant Gaurav Jaju averred in the complaint that he had lent an amount of Rs. 70,000/to the accused on the recommendation of his brother Subhash on 5.12.200 which amount, was agreed to be returned by accused within a month free of interest. Cheque bearing No.114388 dated 5.1.2007 for Rs 70,000/drawn upon Punjab National Bank was issued by accused in favour of the appellant for the purpose of repayment. On the request of accused, the complainant did not present the cheque for encashment on 5.1.2007 or immediately thereafter. He, however, presented the cheque in May, 2007 which was dishonoured with remarks “funds insufficient” and returned to his bankers unpaid. Complainant served demand notice in writing upon respondent by RPAD. Although served, the demand made in the legal notice was not complied with. Therefore, appellant /complainant filed Complaint under section 138 of the N.I. Act against the accused.

3. Defence of the accused as is revealed from his statement recorded under section 313 of Cr.P.C., is that Subhash, brother of complainant, might have stolen cheque in question from his Shop as he was not in his shop for about 2/3 months on account of illness of his daughter and that cheque must have been misused by complainant. Accused claimed that he does not know complainant Gaurav and since Shop of Subhash (complainant's brother) is adjacent to his shop, he has cordial relations with Subhash. It was further claimed that false case has been instituted against him.

4. Before the Special Court, complainant examined himself as PW 1, Madan Bhake, an employee of his banker (PW 2) and Subhash, his cousin brother as PW 3 while accused examined himself.

5. Learned Special Court dismissed the Complaint and acquitted the accused mainly on the following grounds :

(I) Transaction appears to be suspicious. Even though complainant claimed that transaction in question was disclosed in Incometax return, he did not file copy thereof on record;

(ii) Complainant had no acquaintance with accused and would not lend an amount of Rs. 70,000/to an unknown person;

(iii) Complainant has failed to establish that there was legally enforceable debt against the accused and even though there exists presumption in favour of complainant, accused has satisfactorily rebutted the same.

6. A trickster drawer who may have no intention to pay the amount, may find out ways and means to deliberately avoid payment. However, truth has a tendency to surface. It did appear to have surfaced in the course of crossexamination of the complainant on behalf of the accused. In an answer to the question regarding contents of Exh.25 statement of the complainant appears to have been invited in terms “particulars written in Cheque Exh.25 are in the handwriting of the accused.” The fact of dishonour of cheque is also proved by cogent evidence of PW 2 Madan D Bhake, Bank Manager of Nagpur Nagrik Sahakari Bank. While handloan transaction is proved by evidence of PW 3 Subhash Jaju that Gaurav had advanced hand loan of Rs. 70,000/to the accused. According to the accused, he had lodged complaint as to alleged loss/theft of cheque. Nothing prevented draweraccused to produce copy of complaint if it was lodged with the police regarding missing cheque. The defense, therefore, is apparently appear an evasive attempt to dodge the complainant and deprive him of the payment due upon the cheque. The complainant has benefit of statutory presumptions under sections 118 and 139 of the N.I. Act to start with and establish the issuance of cheque; dishonour thereof and the evasion of payment on the part o