1. The appellant, who is the original complainant in Summary Criminal Case 160 of 2004 is challenging the judgment and order dated 22.2.2005 rendered by the Judicial Magistrate First Class, Washim by and under which, the respondent 1 – accused is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 (“Act” for short).

2. Heard Shri C.A. Joshi, the learned counsel for appellant and Shri S.R. Deshpande, the learned counsel for respondent 1.

3. The short submission of Shri C.A. Joshi, the learned counsel for the complainant is that the learned Magistrate failed to appreciate that the accused could not rebut the statutory presumption under section 118(a) and 139 of the Act. The defence, that the accused entered into an oral agreement to purchase plot from the complainant and a blank cheque was given towards payment of the earnest amount which was not returned despite the frustration of the agreement, is not probabilized even on the touchstone of preponderance of probabilities, is the submission.

Per contra, Shri S.R. Deshpande, the learned counsel for the accused would submit that the evidence on record would suggest that the financial capacity of the complainant to extend hand-loan of Rs. 2 lacs to the accused and the factum of the complainant having extended such loan, is rendered suspect in view of the material elicited in the cross-examination of the complainant. The limited burden to rebut the presumption is to render the existence of defence probable on the touchstone of preponderance of probabilities, is the submission. The learned Counsel Shri S.R. Deshpande, would submit that the father of the accused has stepped into the witness box to substantiate the defence that the complainant misused the blank cheque despite the frustration of the oral agreement to sell the plot to the accused.

4. The gist of the complaint (Exh. 1) is that in view of cordial relationship, the complainant extended a handloan of Rs. 2 lacs to the accused on 16.2.2004. Towards refund of the handloan, the accused issued cheque 0942443 dated 12.3.2004 drawn on the Akola Janta Commercial Cooperative Bank Limited for Rs 2 lacs. The cheque was presented for encashment on 12.3.2004 and was dishonoured due to insufficient funds in the account of the accused. The statutory notice was issued, the notice was duly received by the accused who chose not to reply thereto.

5. CW 1 is the complainant Dr. Kailash Charkha. The examination in chief is consistent with the averments in the complaint.

In the cross-examination, it is extracted that the complainant is a medical practitioner and income tax payee. The complainant states in the cross-examination that he withdrew the amount from the account of his father in law, which account he was authorized to operate and handed over the same to the accused in the presence of the father of the accused. It is brought on record that the complainant owns plots at Washim. The suggestion that the cheque of Rs. 2 lacs was received as consideration for sale of the plot, is denied. CW 1 states that when the accused handed over the cheque, the contents were filled in. He denies the suggestion that a signed cheque, the rest of the contents of which were blank, was handed over by the accused on 10.3.2004 and that the figure of Rs. 2 lacs is filled in by the complainant, in the presence of the accused. He denies the suggestion that the transaction of sale was to be completed on 12.3.2004 and the cheque was to be encashed only thereafter. The suggestion that the complainant did not produce the documents of the plot and that a dispute arose between the complainant and the accused on the issue of consideration, is denied.

6. In the written statement submitted by the accused under section 313 of the Code of Criminal Procedure, 1973, it is contended that the complainant did not extend loan to the accused. The complainant agreed to sell his plot to the accused and one cheque towards earnest amount was hand