JUDGMENT

S M Modak, J. - Normally Courts dealing with the dishonour of cheque cases come across a defence of denying the liability, non- compliance of the various time period prescribed in that. In the appeal before this Court, the accused-respondent (apart from taking usual defences) has taken a special defence about issuing the cheque in voluntarily. Accused have pleaded that accused No.3 (Director of accused No.1 - company) was taken to the factory of Milkiyatsingh Saggu on 15/05/2003 and his signature on the cheque in issue was taken by applying force.

2. Complainant - company and the respondent No.1 - company both are involved in similar type of business of dealing in steel and other material. The complainant was a trader, whereas accused No.1 - company is a manufacturer. The issuance of a cheque has arisen out of the transaction of sale of the steel material of different kinds by the complainant to accused No.1 - company. There are two instances of sale dated 13/05/2003 and 14/05/2003. The value of this sale amounts to Rs.5.00 lakhs. The cheque in question was issued on Punjab National Bank, Gandhibagh Branch, Nagpur for Rs.5.00 lakhs. It was dated 15/05/2003.

3. The complainant on one hand contends about voluntarily issuance of that cheque for genuine transaction of sale of steel material. Whereas, the accused contends about issuance of a cheque not freely, but by applying the force. Accused Nos.2 and 3 are the Directors of accused No.1 - company. Accused No.3 signed the cheque. Accused No.2 expired after filing of a complaint and earlier to its disposal. On one hand, complainant contends about dishonour of cheque due to insufficient funds, issuance of a demand notice dated 21/06/2003 and its receipt by direct and by constructing way and consequent failure to pay the amount of the cheque. Whereas, the accused contends about issuance of notice to the complainant on 20/05/2003 lodging of a complaint with Lakadganj Police Station, Nagpur.

4. The accused have also tried to explain the background in which the cheque in question was issued. The accused was having some financial dispute with one Milkiyatsingh Saggu. Under the guise of settling that dispute, the complainant took accused No.3 to the factory of Milkiyatsingh on 15/05/2003. At that place, by threatening the accused No.3 with the help of Pistol, accused No.3 was forced to sign on certain documents. It includes blank stamp paper, blank agreement and blank cheque in question.

EVIDENCE and FINDINGS OF TRIAL COURT

5. Both the parties adduced their evidence before the trial Court. On behalf of the complainant, one Girdharilal Sohanlal Agrawal gave evidence. Whereas, accused has chosen to examine one Bhaudas Zaduji Raut, a Special Assistant from Punjab National Bank (in which the accused company was having account). As per the rule of the company, signature of the Chairman and Director are required. Whereas, the cheque in question contained only the signature of accused No.3. For proving this fact, witness Bhaudas Raut was examined.

6. After hearing both the sides, the learned trial Court find favour with the accused. The trial Court found shortcomings in the evidence of the complainant and it was concluded that the accused have rebutted the presumption required to be drawn under Section 139 of the Negotiable Instruments Act (hereinafter referred to as the "N.I. Act" for short).

ARGUMENTS

7. Learned Advocate Shri Sable argued on behalf of the complainant, whereas the learned Advocate Shri Dixit argued on behalf of the accused. The learned A.P.P. has supported the judgment of the trial Court. They have helped this Court in going through the record. I got an opportunity to go through the ratio laid down in some of the citations relied upon by both the sides. This Court feels that the appeal needs to be decided on the following issues :-

I. Whether the presumption in favour of the complainant can be drawn under Section 139 of the Negotiable Instruments Act?

II. Whether the a