The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the onus is on the complainant to prove the offence beyond reasonable doubt.

JUDGMENT

1. Present appeal has been filed by the original complainant challenging the acquittal of the respondents by learned Judicial Magistrate First Class, Aurangabad in Summary Criminal Case No.3718/2001 on 28.02.2007 from the offence punishable under Section 138 of the Negotiable Instruments Act.

2. Heard learned Advocate Mr. A.P. Bhandari for the appellant and learned Advocate Mr. A.S. Gandhi for respondent No.2.

3. The original complainant has come with a case that he is the proprietor of one M/s. Creative Industries. Accused No.1 is a private limited company and accused No.2 is the Director of accused No.1. It is also stated that she was responsible for the day to day affairs of the accused No.1-company. The complainant had business transactions with accused No.1 and in connection with the same, accused No.1 had issued cheque bearing No.297022 dated 23.04.2001 for Rs.3,49,000/- through Managing Director Mr. Prabhakar Pandit, as part payment towards outstanding bill. The said cheque was drawn on State Bank of Hyderabad, Branch Aurangabad. It was presented by the complainant for encashment with his banker Ajanta Urban Co-operative Bank, Aurangabad, however, the cheque was dishonoured with reason 'Exceed Arrangement' and the said intimation was received by the complainant on 06.08.2001. The complainant issued statutory notice to both the accused on 16.08.2001, which was in fact posted on 18.08.2001. That notice was received to the accused persons on 24.08.2001, however, in spite of receipt of the said notice the amount under the cheque was not given and, therefore, he filed the complaint.

4. After the verification, process came to be issued by the learned Magistrate and thereafter the learned magistrate had recorded the plea of accused. After the accused pleaded not guilty trial has been conducted. The complainant has examined himself as well as he has also examined CW 2 Alhad Kulkarni. When the incriminating evidence had come on record, the learned Magistrate has recorded the statement of accused under Section 313 of the Code of Criminal Procedure and thereafter the accused No.2 has examined herself and withstood the ordeal of the cross-examination. Taking into consideration the evidence on record the learned Magistrate after hearing both sides held that the complainant has failed to prove that there was legally enforceable debt or liability towards the complainant by the accused. It was also held that since the signatory to the cheque i.e. Managing Director Mr. Prabhakar Pandit had expired prior to the presentation of the cheque for its encashment and the accused No.2 was successful in proving that she had no knowledge about the issuance of the said cheque; the accused is successful in rebutting the presumption under Section 139 of the Negotiable Instruments Act. The learned Magistrate thereby acquitted the accused. Hence, this appeal.

5. Learned Advocate Mr. A.P. Bhandari appearing for the appellant has vehemently submitted that the respondent-accused No.1 is a private company, in which there were only two Directors; one was Mr. Prabhakar Pandit and another was accused No.2 Smt. Madhuri Prabhakar Pandit. It has come on record that there were business transactions between the complainant and the accused No.1-company. Various good were supplied by the complainant to the company and even payments were made by the complainant to various vendors. Under such circumstance, the accused was expected to pay the said amount, which can be said to be legally enforceable debt or liability, since the price of the goods, which was supplied by the complainant or for which he has paid the amount for accused-company, should be reimbursed to him. The cheque in question was in fact issued towards the outstanding amount and it was the part payment. Unfortunately Mr. Prabhakar Pandit expired on 08.05.2001 and accused No.2 remained to be the sole Director of the company. The cheque was presented by the complainant with his banker on 30.07.2001 and