The main legal point established in the judgment is the significance of the presumption under Section 139 of the N.I. Act, the burden of proof on the appellant, and the credibility of the accused's defences.

JUDGMENT :

VIBHA KANKANWADI, J.

1. Present appeal has been filed under Section 378(4) of the Code of Criminal Procedure by the original complainant challenging the acquittal of respondent-accused by learned Judicial Magistrate First Class, Court No. 3, Shrirampur in Summary Criminal Case No. 452 of 2013 on 17-09-2016, whereby the respondent came to be acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N.I. Act’).

2. By order dated 29-06-2017, this Court had granted leave to appeal.

3. Heard learned Advocate Mr. G.D. Jain for appellant and learned Advocate Mr. P.S. Dighe for respondent.

4. It has been vehemently submitted on behalf of the appellant that the complainant had come with the case that on the request of the accused, she had extended hand loan of Rs. 80,000/- and in discharge of that legal debt or liability, the accused had issued cheque bearing No. 741625 on 28-03-2013 drawn on her account maintained with Bank of Maharashtra branch at Shrirampur. It was assured that on the presentation of the said cheque, it would be honoured. Therefore, on the same day, the said cheque was presented by the complainant with her bank, namely, Nagar Urban Co-operative Bank, Branch at Shrirampur. However, the said cheque came to be dishonoured on 30-03-2013 on the ground “funds insufficient.” Thereafter, the complainant had issued notice on 04-04-2013 through Advocate and demanded the amount under the cheque. In spite of receipt of the said statutory notice, accused did not give the amount, but gave a false reply and, therefore, the complaint was filed before the learned Judicial Magistrate First Class, Shrirampur. The complainant has examined herself and produced certain documents. The accused has also examined herself as well as a witness in defence. After hearing both sides, the learned Judicial Magistrate First Class has acquitted the accused.

5. Learned Advocate for the appellant would submit that the learned Magistrate has not appreciated the evidence properly, so also has not considered the legal aspects involved in proper perspective. When the cheque was admittedly given by the accused, there was a presumption under Section 139 of the N.I. Act. The learned Magistrate, thereafter, ought not to have gone into the aspect regarding the source of income while lending the amount. Further, when the cheque was admittedly issued by the accused, then learned Magistrate ought not to have invoked his powers under Section 73 of the Indian Evidence Act and take it upon himself to have comparison with the alleged admitted signature. Further error has been committed that the said amount has not been shown in the income tax returns and, therefore, it has been taken as unaccounted cash. He failed to consider the legal position in Bipin Mathurdas Thakkar vs. Samir alias Sameer Dessai, 2015 (1) Bom. C.R. (Cri) 601, wherein the ratio in Sanjay Mishra vs. Kanishka Kapoor, 2009 (3) Bom. C.R. (Cri) 157 was distinguished and held that it is not based on sound law. In Bipin Thakkar’s case (Supra), it has been held that “every amount which is not shown in the income tax returns or the cash that has been given as hand loan will not amount to violation of the Income Tax Act and cannot be termed as unaccounted amount.” Learned Judicial Magistrate First Class totally erred in holding that the presumption under Section 139 of the N.I. Act has been rebutted by the accused. The accused had come with the case that the complainant is indulged in a business of chit fund (Bhishi) and the accused was one of the member of the same. She had issued the cheque in favour of the complainant by way of security for the repayment of amount of the said chit fund. Accused has stated that the complainant has misused the said cheque and, therefore, in order to prove her defence, she had examined AW-1 Pratibha Patil, who claimed that she is also the member of chit fund. She has tried to say that lot of times she