JUDGMENT

A.M. Dhavale, J. (Oral) - This is an appeal against acquittal of the respondent for offence under section 138 of the Negotiable Instruments Act (here in after referred to as ''NI Act'') by learned Judicial Magistrate First Class, Chakur, in Summary Criminal Case No. 1070 of 2002.

2. As per the complaint, the complainant/appellant is resident of Nalegaon, Tq. Chakur. He was agriculturist by profession. He was knowing the accused/respondent r/o Ashta, Tq. Chakur, for 10 years. On 01.03.2001, the accused demanded from him a sum of Rs. 75,000/as a hand loan for household expenses. He had agreed to refund the amount with in three months. The complainant paid the amount to him and the accused issued to him a postdated cheque dated 01.06.2001. The accused did not make repayment. Hence on 22.06.2001, the complainant presented the cheque in his bank. The said cheque was returned along with memo of dishonour dated 22.06.2001 for insufficient funds. The complainant issued notice dated 02.07.2001. the accused received it on 03.07.2001 but did not reply or comply. Hence, the complaint was filed on 13.08.2001.

3. The complainant examined himself only and produced documents. The ld. trial Judge held that the cheque was issued towards security. He relied on Shaku Concretes (P) Ltd. v. State of Gujarat 2000 Cr.L.J. 1988 (Gujarat) to hold that the cheque issued at the time of payment for security is not towards discharge of legally enforceable debt. Therefore, the presumptions under section 118 and 139 Negotiable Instruments Act are not applicable. There was no other evidence of existence of legally enforceable debt. Hence, the accused was acquitted.

4. Ld. Advocate Shri. G. D. Kale for appellant (complainant) argued that, the fact that the cheque was issued as a security is not material for consideration of a case under section 138 NI Act. Th amount of Rs. 75,000/was paid along with the cheque and was outstanding on the date of presentation of the cheque in the bank. The complainant has issued a notice which was not replied by the accused. The complainant has led his evidence which shows that, the complainant had very good relations with the accused over 10 years and he had previous hand loan transactions of small amounts. The complainant was reluctant to pay Rs. 75,000/as it was a big amount and therefore the accused issued a cheque of Rs. 75,000/. The complainant had received money by selling jaggery. the accused has not produced any material to substantiate his defence that he had issued blank cheque to cousin of the complainant by name Keshav. The complainant has proved following documents.

(i) A dishonoured cheque of Rs. 75,000/dt. 01.06.2001 Exh.23.

(ii) Memo of dishonour dated 22.06.2001 Exh. 24 & 25.

(iii) OC of the notice dated 02.07.2001 Exh.26.

(iv) The postal receipt Exh. 27 and acknowledgement of RPAD Exh. 28.

5. The ld. trial Judge erred in disbelieving the prosecution case only on the ground that the cheque was received as security. Hence the complainant should be believed and the appeal should be allowed.

6. None present for the respondent.

7. The points for my consideration with my findings thereon are as follows :

Sr. No. Points Findings

(i) Whether the accused had issued a Not proved. cheque of Rs. 75,000/towards discharge of legal liability and he failed to make payment of the same on service of notice when it was dishonoured?

(ii) Whether the accused is guilty under section 138 No.NI Act and whether any interference is called for?

(iii) What order? The appeal is dismissed.

REASONS

8. The complainant has led his evidence as per his complaint and has placed strong reliance on the presumption under section 139 and 118 of NI Act. sections 139 and 118 NI Act read as follows.

S. 118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made:

(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument,