Important Point – Dishonour of cheque – Standard of proof is essentially that of preponderance of probabilities and not proof beyond reasonable doubt.

SHALINI PHANSALKAR JOSHI, J.

1. This appeal is preferred by original complainant, challenging the acquittal of respondent-accused, for the offence punishable under Section 138 of the Negotiable Instruments Act, as recorded by the joint Judicial Magistrate First Class, Nashik, vide his judgment and order dated 17th April, 2001, in Summary Case No. 1469 of 1998.

2. Brief facts of the appeal can be stated as follows:-

Appellant herein is a registered partnership firm. It has filed private criminal case against respondent through its partner Shri. Sharad Chandorkar, for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the, N.I. Act) alleging inter alia that the respondent has from time to time since 10th June, 1997, started purchasing broiler chicken on cash basis from the appellant firm. Initially respondent used to purchase the broiler chicken on part payment. Appellant has maintained accounts of the transactions that took place between the appellant and respondent. It was specifically alleged in the complaint that respondent has purchased broiler chicken amounting to Rs. 2,69,000/- by various bills dated 16.5.1998, 17.5.1998, 20.6.1998 and on 21.6.1998. Towards discharge of his liability of Rs. 2,69,000/- respondent issued cheque of Rs. 2 lacs and assured to pay balance amount of Rs. 69,000/- by the end of August, 1998. However, when the said cheque was presented to bank, it came to be dishonoured. Hence after issuing demand notice, appellant has filed this case before the trial Court.

3. The trial Court recorded plea of respondent vide Exh.23 to which he claimed not guilty. In support of its case, the Partner of appellant firm, Sharad Chandorkar examined himself and other two witnesses from the bank to prove dishonour of the cheque. On appreciation of this evidence, trial Court was pleased to hold that the appellant has failed to prove that the cheque was issued towards discharge of existing legal liability and accordingly the trial Court acquitted the respondent.

4. This judgment of the trial Court is challenged in the appeal, by learned counsel for the appellant, by submitting that Section 118(a) and Section 139 of the N.I. Act, clearly lay down presumption in favour of holder of cheque that cheque was issued towards discharge of existing legal liability. Hence it was incumbent on the respondent accused to rebut the said presumption by leading his own evidence. Respondent, has, however, not examined himself nor led any other rebuttal evidence. Hence the said presumption has remained un-rebutted. Therefore, according to learned counsel for appellant, the trial Court has committed an error apparent on the face of record, by acquitting the respondent, hence the impugned judgment and order of the trial Court is required to be quashed and set aside.

5. Per contra, learned counsel for respondent has submitted that respondent can rebut presumption under Section 118(a) and Section 139 of the N.I. Act even through the cross examination of complainant and other material on record; for that purpose it is not necessary for him to enter into the witness box or to lead any defence evidence. As per learned counsel for respondent, cross examination of complainant clearly reveals that complainant himself is not sure about the dates of the transaction and the corroborating documentary evidence to prove the transactions in question is also not produced on record, though according to appellant, he was having such evidence. Hence as per learned counsel for respondent, the trial Court has rightly concluded that in the absence of sufficient evidence on record proving the existence of any legal liability, respondent cannot be held guilty.

6. Thus, the only disputed question raised for consideration in this appeal is whether the cheque was issued towards discharge of existing legal liability?

7. On this issue, one can make useful reference to two judgments of Apex Court in K. Bhaskaran vs