Presumption under Sec. 139 of N.I. Act mandates that the cheque was for the discharge of any debt or liability, and the burden is on the accused to raise a probable defense to rebut the presumption.

JUDGMENT

1. The Original Complainant through legal heir preferred present appeal thereby challenging the Judgment and Order dated 02. 05.2017 passed by the learned Magistrate at Canacona in Criminal Case No.17/OA/NI/2015 by which Respondent was acquitted for the offence punishable under Sec. 138 of N.I. Act.

2. Vide order dtd. 20/9/2017, leave to appeal was granted and the appeal was admitted.

3. The records and proceedings along with the paper-book were called.

4. Heard learned Counsel Mr Iftikhar Agha appearing with Mr Ketan Morajkar for the Appellant and learned Counsel Mr Zeller de Souza for the Respondent.

5. With the assistance of the learned Counsel appearing for the respective parties, I have perused the record and more specifically the findings in the impugned Judgment.

6. Mr Agha appearing for the Appellant would submit that the cheque issued by the Respondent is admitted including the signature and the amount. Thus, presumption arises under Sec. 139 of N.I. Act. In this respect, he would submit that in reply to the notice issued by the Appellant, Respondent clearly admitted of the loan but claimed in defence that such loan was repaid. He, therefore, would submit that once the financial transaction between the parties is accepted and a cheque is issued in discharge of such liability, presumption arises in favour of Complainant. The so-called defence raised in the reply that entire loan has been repaid, needs to be proved by the Accused. In this case, according to Mr Agha, Accused failed to establish or discharge the burden regarding repayment of the loan. Once there is no such evidence, the question of rebutting of the presumption would not arise. He then would submit that the cross examination of the Complainant about his financial capacity was absolutely unnecessary once the Accused admits of obtaining loan from the Complainant. On this premise, he submitted that findings in the impugned Judgment regarding financial capacity of the Complainant is also required to be quashed and set aside as same is perverse. Once the Accused admits of obtaining loan from the Complainant, it is presumed that the Complainant is having financial capacity to lend money.

7. Mr Agha then would submit that Accused while answering statement under Sec. 313 Cr.P.C. again admitted of taking loan and therefore, the cheque issued by the Accused carries presumption under Sec. 139 of N.I. Act. He would submit that the findings of the learned Trial Court suffers from fundamental flaw of appreciating the evidence and failing to consider presumption and therefore, it is fit case to interfere and reverse the Judgment by holding the Accused guilty of the offence under Sec. 138 of N.I. Act.

8. Per contra, Mr de Souza appearing for the Respondent would submit that first of all, the complaint shows that the loan of Rs.4,00,000.00 was given to the Accused against receipt. No such receipt is produced. Similarly, the Original Complainant failed to step into the witness box and in his place, his wife, as power of attorney, deposed. From her cross examination, it is clear that she was not aware of all the facts and therefore, Accused succeeded in rebutting presumption of preponderance of probabilities. He then submitted that reply to the legal notice has to be looked into as a whole wherein Accused clearly denied of taking loan of 4,00,000/- from Rs. the Complainant. Mr de Souza then submitted that PW1 cannot be believed as she failed to produce the relevant documents showing the capacity of the Complainant to lend money. Complainant suppressed material facts and approached the Court with unclean hands. Complainant had no financial capacity and there is no evidence to show transactions between the Complainant and the Accused.

9. Mr Agha placed reliance in the case of Rohitbhai Jivanlal Patel vs. State of Gujarat and Anr.,(2019) 18 SCC 106.

10. Mr de Souza placed reliance on the following decisions:- a. Basalingappa vs. Mudibasappa,(2019) 5 SCC 418. and b. Anss Rajashek