The presumption under Section 139 of the N.I. Act applies, placing the burden on the accused to prove that dishonored cheques were issued for security, which he failed to do.

JUDGMENT :

1. Heard learned advocate for appellant.

2. This appeal is preferred by the complainant against the judgment delivered by the learned Judicial Magistrate First Class, Parbhani, Tq. and Dist. Parbhani (hereinafter referred to as “the learned Trial Court”) in Summons Criminal Case No. 930 of 2017 dated 03.03.2022. It was a complaint against the accused/respondent under the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act” for short). It was dismissed.

3. The complainant/appellant contended that, he was a partner in a firm named and styled as a Country Liquor Shop No. CL-III-13 situated at Zari, Tq. and Dist. Parbhani, having license in the name of Vinayakrao Narmadashankar Upadhyay, who is his father and partner of firm. The complainant used to supervise the said shop as a partner. The accused and his sons were appointed as a Manager to look after the day to day affairs of the shop and conduct of that business. The complainant was not interested in that business. The accused made request to him to transfer the license of said Country Liquor Shop in his name. The complainant agreed to transfer license of CL-III-13 of the said shop and its good will in favour of accused. As there was goodwill of shop, it was agreed to sell it for consideration of Rs.25,00,000/- (rupees Twenty Five Lacs only). Subsequently the consent of complainant and his father for transferring license was obtained and on the basis of that a liquor shop license was transferred in the name of respondent/accused. For that the application was forwarded by the complainant to the Collector, Parbhani. The accused had agreed to pay that amount of Rs.25,00,000/- through the cheques. The agreement was executed before the Notary. The accused issued five cheques bearing Nos.4011, 4012, 4013, 4014 and 4015 of amount of Rs.5,00,000/- each dated 05.04.2017, 10.04.2017, 15.04.2017, 20.04.2017 and 25.04.2017 respectively in favour of the complainant.

4. The cheques were deposited in the bank account of complainant but those were dishonoured. A statutory notice was sent to the accused dated 27.04.2017 through advocate of complainant. It was served on the accused. On 08.05.2017 the accused replied to the said notice and denied to pay that amount of Rs.25,00,000/- of cheques. Therefore, the complaint was filed.

5. The process was issued against the accused. The oral and documentary evidences were adduced by the complainant. The accused did not adduce any oral evidence. He submitted documents of civil suit, etc. at Exhibit–76. The learned Judicial Magistrate First Class dismissed the complaint and acquitted the accused on the ground that, there was no legal liability of accused to pay that amount to the complainant.

6. The grounds of objections of this appeal are that, the learned Trial Court did not consider the presumption under Section 138 of the N.I. Act. The evidence was not properly appreciated. The reasons and findings were neither legal nor correct. It is lastly prayed that the appeal be allowed, the impugned judgment be set aside, the complaint be allowed and accused be sentenced.

7. The learned advocate for complainant/appellant argued that, the learned Trial Court failed to consider admitted fact that agreement to sale of said shop in its proper perspective. He pointed out that, the reasoning given by the learned Trial Court are not legal and correct. He is relying upon the precedental law of Sri Sujies Benefit Funds Limited Vs. M. Jaganathuan in Criminal Appeal No.3369 of 2024 [@ Special Leave Petition (CRL.) No. 4022 of 2022] decided by the Hon’ble Supreme Court on 13.08.2024. Paragraph No.15 of it reads as under :

15. This Court in Dashrath Rupsingh Rathod V. State of Maharashtra, (2014) 9 SCC 129 held that, “An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank of discharge of debt/liability is returned unpaid for insufficie