IMPORTANT POINT
The presumption of issuance of a cheque in discharge of a legally enforceable debt under Section 139 of the N.I. Act cannot be disregarded, and the burden to rebut this presumption lies with the accused.

JUDGMENT/ORDER

1. The Appellant/Complainant is challenging the impugned judgment passed by the learned Magistrate in Criminal Case No. 260/OA/NIA/2016/A dtd. 3/5/2018 whereby Respondent/ Accused was acquitted for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, the N.I. Act).

2. The parties are hereinafter referred to as Complainant and Accused as arrayed before the Trial Court.

3. Heard Mr. Anthony D'Silva, the learned Counsel for the Appellant-Complainant and Mr. Arjun Naik, the learned Counsel for the Respondent-Accused.

4. With the assistance of the learned Counsel for the parties, I have perused the entire paper book and more specifically, the cross examination of the Complainant and the findings in the impugned order.

5. The learned Counsel for the Appellant would submit that the only ground on which the Accused/Respondent was acquitted is that the Complainant failed to disclose in his statement of Account the amount which was due to him from the Accused for the year ending 31/3/2015. The learned Counsel for the Appellant submitted that the statement of Account along with the Income Tax Returns for the year ending 31/3/2015 was produced and that, in such statement, an amount of Rs.3,80,650.00 is mentioned as Sundry Debtors. He submits that such term "Sundry Debtors", in the Balance Sheet de-notes the amount which the Appellant was supposed to receive from his debtors at the end of such financial year. He submitted that the said amount of sundry debtors mentioned therein is more than the cheque amount and therefore, the learned Magistrate ought to have considered this.

6. The learned Counsel for the Appellant further submitted that apart from cross examining the Complainant, the Respondent/Accused failed to step into the witness box and the presumption under Sec. 139 of the N.I. Act has not at all been rebutted.

7. The learned Counsel appearing for the Respondent/ Accused vehemently submitted that the Complainant has failed to prove his case beyond all reasonable doubts and the cross examination of the Complainant would submit that the cheque in question was in fact misused by the Complainant, which he was having with him in connection with the partnership business between the Complainant and the Accused and in connection with the supply of material. He invited my attention to the delivery challans and more specifically, the letter dtd. 7/8/2014 and the observations of the learned Magistrate that these challans and the letter appear to be a forged document.

8. The points for determination are as under, together with my findings against it:-

<WXY>(i) Whether the Respondent/Accused succeeded in rebutting the presumption under Sec. 139 of the N.I. Act ?

(ii) Whether the learned Magistrate erred in shifting such burden on the Complainant ?</WXY>

9. The complaint was filed under Sec. 138 of the N.I. Act claiming therein that the Complainant supplied construction material/raw material to the Accused and a cheque of Rs.2.00 lakhs was issued towards such material supplied. When the cheque was presented for encashing, the same was returned unpaid. A notice was issued to the Accused to pay the amount mentioned in the cheque, however, inspite of receipt of such notice, no payment was forthcoming.

10. The Accused replied to the said notice and denied about the supply of the building material and issuance of cheque towards the payment of such material. In the said reply, it is the case of the Accused that he along with the Complainant floated a partnership firm and undertook its first project of construction of the building. Since a dispute arose between the partners, the Accused retired from the said partnership and asked for the Accounts. A perusal of this reply dtd. 7/10/2014 shows that there is no whisper about the denial of the signature on such cheque on behalf of the Accused. It is only contended that the cheque was not issued towards the supply of construction material. Even there is no allegation