IMPORTANT POINT
The issuance of a cheque and acknowledgment of the debt are sufficient to invoke the presumption of liability under the N.I. Act, and the burden lies on the accused to rebut this presumption with credible evidence.

JUDGMENT/ORDER

1. In this revision application, challenge is to the judgment and order dtd. 5/5/2015, passed by learned Sessions Judge, Akola, whereby learned Sessions Judge allowed the appeal filed by the accused against his conviction and sentence for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act" for short) and acquitted him. Learned Judicial Magistrate First Class, Akola, by judgment and order dtd. 7/5/2014, on conviction, had sentenced the accused to suffer rigorous imprisonment for three months and to pay fine of Rs.2, 80, 000.00 (two lakhs eighty thousand only) and in default, to undergo simple imprisonment for one month.

2. The facts are as follows:

In this judgment, the parties would be referred by their nomenclature in the complaint. The applicant is the original complainant. Non-applicant No.1 is the accused. It is the case of the complainant that he intended to invest his money in real estate. The accused wanted to sell his two shops. The complainant agreed to purchase the two shops of the accused for a total consideration of Rs.5, 01, 000.00. On 3/12/2010, an agreement to sell was executed. The complainant paid Rs.3, 80, 000.00 to the accused as an earnest money in cash. The accused handed over possession of the shops to the complainant. The sale-deed was agreed to be executed on 3/6/2011. The accused on one pretext or the other, avoided to execute the sale-deed. At the request of the accused, time was granted by the complainant. However, in the meantime, the complainant came to know that the accused had mortgaged the shops with the bank. In view of this development, the accused requested for some time to release the shops from the bank. Again, an agreement was executed between the accused and the complainant.

3. It is the case of the complainant that in view of the above development, the complainant on the request of the accused given some time to the accused to clear the loan and release the property from mortgage till 26/9/2011. The accused agreed to execute the sale-deed on or before 26/9/2011. Similarly, he issued a cheque bearing No.242741 dtd. 26/9/2011 in favour of the complainant for Rs.3, 80, 000.00, drawn on his account maintained with Jijau Commercial Co-operative Bank Limited towards repayment of the earnest money in case, he was unable to clear the title of the shops and execute the sale-deed in favour of the complainant. It is the case of the complainant that the accused neither cleared the loan amount nor released the property from mortgage. He did not execute the sale-deed as agreed. Therefore, the complainant presented the cheque through his banker for encashment. The cheque was dishonoured on the ground of insufficiency of funds in the account of the accused. The complainant issued a notice to the accused and demanded the amount of cheque. The accused despite receipt of notice did not pay the cheque amount. The notice was also not replied by the accused. The complainant, therefore, filed a complaint. Learned Judicial Magistrate First Class, Akola took cognizance of the offence and issued process against the accused.

4. The complainant examined himself as sole witness. The accused examined himself in his defence. He has also examined one independent witness, to substantiate his defence. Learned Magistrate, on consideration of the material on record, held the accused guilty of the offence punishable under Sec. 138 of the N.I. Act and sentenced him as above. The accused filed an appeal against his conviction and sentence. Learned Sessions Judge, Akola set aside the judgment and order passed by learned Magistrate and acquitted the accused. The complainant is, therefore, before this Court in revision.

5. I have heard Mr. M. Badar, learned advocate for the complainant and Mr. A.R. Chutke, learned Additional Public Prosecutor for the State. Perused the record and proceedings.

6. The record reveals that the advocate appearing for the ac