The burden of proof in a prosecution under Section 138 of the Negotiable Instrument Act lies on both the complainant and the accused. The court must analyze the evidence to establish liability and intention, considering the authority to fill in the details of the cheques and the effect of material alterations.

JUDGMENT

S. M. Modak, J. - Heard learned Advocate Shri A. S. Khandeparkar for the Appellant-Complainant, learned Advocate Ms. Megha Bajoriya for the Respondent No.1 and learned APP Shri H. J. Dedhia for the Respondent No. 2-State.

2. Both these appeals are arising out of judgment of acquittal given by the Court of Metropolitan Magistrate 30th Court, Kurla, Mumbai on 30/08/2011. The complaint for the offence punishable under Section 138 of the Negotiable Instrument Act was filed by the Complainant as a Partner on behalf of the Firm. There was relationship of Financer and Developer in between the Appellant and the Respondent No. 1 (hereinafter they will be described as per their original status before the trial Court). The complainant have given loan of Rs. 1 Crore to the accused. They have entered into a Memorandum of Understanding on 09/05/2003. The complainant was given various options of re-payment.

3. The amount was advanced as accused wants to pay the consideration to owner of the property. Owner of the property situated at Bahadur S. K. Bole Marg, Dadar, Mumbai and owned by one Kishorebhai Karamsey Vikamsey. The said Kishorebhai has agreed to entrust that property for development to the accused. For some reason or other, the accused could not complete the construction of the building on the said plot.

4. Amongst various modes available as per the Memorandum of Understanding, the complainant has opted for refund of the amount of Rs. 1 Crore alongwith interest. When the Memorandum of Understanding was executed, the accused has issued two cheques to the complainant. Their details are given in para no. 11 of the Memorandum of Understanding. Those two cheques were not completed in all respect. The complainant deposited both these two cheques in their bank account Jankalayan Sahakari Bank Ltd., Sion (W). However, they were returned unpaid by the drawee bank, the Cosmos Co-op. Bank Ltd. Dadar (West) for the reason 'Refer to Drawer'.

5. The complainant called upon the accused to pay the amount of those two cheques within 15 days on the receipt of the notice. The accused denied the averments in the notice by sending reply. As such there was failure to pay the amount and hence two complaints were filed before the Court of Metropolitan Magistrate. The details of those cases are as follows:-

6. In both these cases, the accused was acquitted by separate judgments dated 18/06/2007. More or less, the contents of the judgments are same. The complainant has also adduced common evidence in both these cases. Criminal Appeal No. 1630 of 2011 is preferred against the judgment in Summary Criminal Complaint Case No. 3002996/SS/2007. Whereas Criminal Appeal No. 1631 of 2011 is preferred against the judgment in Summary Criminal Complaint Case No. 3002997/SS/2007.

7. The issue involved in these appeals is whether the learned Metropolitan Magistrate has rightly appreciated evidence. The issue is whether the presumption under Section 139 of the Negotiable Instrument Act can be drawn and whether the accused has successfully rebutted that presumption.

8. Learned Advocate Shri A. S. Khandeparkar relied upon the following judgments :-

(i) Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited(2016) 10 SCC 458

(ii) Sai Auto Agencies, Amravati Vs. Sheikh Yusuf Sheikh Umar (2010) 3 Mh. L. J. 702

(iii) Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197

(iv) M/s Sri Krishna Agencies Vs. State of A.P. and Anr. Cri. Appeal No. 1792 of 2008, dated 11/11/2008

(v) Cri. Appeal No. 1792 of 2008 M/s. Sri Krishna Agencies Vs. State of A.P. & Anr. (Arising out of SLP(Cri. No.6878/2007) Supreme Court of India

Presumption