IMPORTANT POINT
For rebutting presumption u/s. 139 of N.I. Act the standard of proof is preponderance of probabilities and such inference could be drawn from material on record.

D.B. Bhosale, J.—These two appeals, preferred by Vinayak Parulekar, the complainant, are directed against the two judgments and orders of acquittal of the respondent-accused rendered in two criminal cases bearing No. 138/OA/1997/D and 130/OA/1997/D. Both these cases were filed by the complainant under Section 138 of Negotiable Instruments Act (for short ‘the Act’).

2. Criminal Appeal No. 37/2006 is directed against the judgment and order dated 16.12.2005 passed by the learned Magistrate in Criminal Case No. 138/OA/1997/D (for short ‘the first case’) and Criminal Appeal No. 38/2006 is directed against the judgment and order dated 16.12.2005 passed by the learned Magistrate in Criminal Case No. 130/OA/1997/D (for short ‘the second case’). By the impugned judgments the trial Court has acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’).

3. Though the cheques and the evidence led by the parties in these two cases are separate, the parties and the facts so also the circumstances against which the cheques of Rs. 3 Lacs and Rs. 5 Lacs were issued, are similar and hence, these two appeals are being disposed by this common judgment. The case set up by the complainant is that the accused had issued two cheques, dated 28.2.1997 and 11.1.l997, in due course of business towards the debt due and payable to him. Both these cheques were presented by the complainant in his Bank. Both the cheques were bounced and were returned with an endorsement ‘not arranged for’ and ‘payments stopped by the drawer’, on 25.4.1997 and 9.4.1997 respectively. Accordingly, legal notices were issued by the complainant on 27.4.1997 and 17.4.1997 calling upon the accused to pay the amount of the cheques within a period of 15 days from the date of receipt of the notice. Notices were received by the accused on 13.5.1997 and 23.4.1997 respectively. The accused did not make the payment of the cheques amount and, therefore, the complainant filed the two private comp1aints under Section 138 of the Act. There is no dispute that the presumption contemplated under Section 139 has been raised and, therefore, I am not entering into factual details. The dispute is only whether the accused has rebutted the presumption and the onus stood shifted on the complainant to establish that the cheques were issued for consideration.

4. According to the complainant, he had given a loan of Rs. 3 lacs and Rs. 5 lacs in cash, to the accused and the accused in turn had issued the cheques in order to repay the loan. The complainant, as stated by him in his deposition, had paid this amount to the accused for purchasing a small premises in Mumbai for the office of Invitation Travels. As against this, according to the accused, the complainant had obtained five different cheques from him under the pretext that he would arrange some loan for Invitation Travels through his contacts from Banks and Financial Institutions in Goa for purchasing a piece of land in Goa. Since, the complainant failed to keep his promise, the accused, after waiting for a year, was constrained to issue a stop payment notice. Despite the request made by the letter dated 28.3.1997, the complainant presented the cheques to his Banker which were bounced. The accused further stated that he is not liable to pay these amounts to the complainant and there was no debt due and payable to the complainant. In short the cheques were not issued for consideration.

5. The trial Court, in both cases, after considering the entire evidence and more particularly, the cross-examination of the complainant, has held that the complainant is unreliable and the accused has successfully rebutted the presumption available under Section 139 of the Act.

6. Mr. Lotlikar, learned Senior Counsel for the complainant at the outset, invited my attention to the admitted facts such as issuance of the cheques by the accused, presentation of the cheques by the complainant in his bank, r