IMPORTANT POINT
Presumption u/s 139 of N.I. Act is rebuttable and the accused can prove the non-existence of any debt or other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witnesses adduced by the complainant.

Kailash Gambhir, J.—By way of this application filed under Section 378, Cr.P.C. the applicant seeks grant of special leave to appeal against the order of acquittal dated 12.9.2005 passed by the Court of Mr. A.K. Sarpal, Metropolitan Magistrate, New Delhi in Complaint Case No. 1998/1/03 titled as N. Chirag Travels (P) Ltd. v. Ashwani Kumar. Brief facts relevant for deciding the present application are:

That the accused Sh. Ashwani Kumar, respondent No. 1 herein approached the complainant M/s. N. Chirag Travels (P) Ltd., appellant herein for purchase of air tickets which were duly supplied and received by him vide invoice No. 4932 for Rs. 20,667/-; invoice No. 4933 for Rs. 23,670/- and invoice No. 4934 for Rs. 13,504/-. The accused as consideration of the tickets purchased and in discharge of his liabilities, signed and issued a cheque bearing No. 486618 dated 6.8.2003 drawn on HDFC Bank Ltd., S-65, G.K.-I, New Delhi for Rs. 56,690/- from an account maintained by him in the name of M/s. Bake Town, of which he is the authorized signatory. The aforesaid cheque when presented for encashment was dishonoured due to ‘Stop payment’ vide cheque returning memo dated 7.8.2003 and despite receipt of demand notice dated 5.9.2003 sent through registered post, the accused failed to pay the cheque amount and hence the complaint under Section 138, N.I. Act, 1881 was made against the accused. Based on the said facts and after taking into consideration the pre-summoning evidence, the concerned Magistrate took cognizance of the offence against respondent No. 1. On merits the applicant examined one witness, namely, Avdesh Singh who was cross-examined by Counsel for respondent No. 1. In his statement recorded under Section 313, Cr.P.C. respondent No. 1 stated that he had issued cheque in a sum of Rs. 56,690/- as advance payment for three air tickets but got the same stopped as he had received only one ticket against one invoice. Counsel also stated that he was ready to make the payment against one air ticket issued against invoice for a sum of Rs. 20,667/-. Learned Magistrate after taking into consideration the said facts and evidence adduced in support thereof came to the conclusion that the applicant failed to establish that it had in fact supplied three tickets to respondent No. 1. The Court also did not feel convinced with the genuineness of the invoices placed on record by the applicant. The Court also drew adverse inference against the appellant due to non-examination of Ms. Rica Goldsmith and M.S.M. Singh, beneficiaries of the other two air tickets.

2. Aggrieved with the said order of acquittal, Mr. Puneet Mittal, Counsel appearing for the applicant raised a serious challenge to the said decision of the Trial Court ignoring the mandate of law laid down under Section 139 of the Negotiable Instruments Act, 1981. The contention of the Counsel for the applicant was that Section 139 of the Negotiable Instruments Act raises a presumption in favour of the holder of the cheque, the same being issued in discharge of the liabilities, until the contrary is proved. The fact of issuance of cheque by respondent No.1; the same getting dishonoured after its presentation by the applicant and receipt of demand notice, once these three factors are established by the complainant, then, it is for the accused to prove in contradiction to show as under what circumstances the cheque issued was not towards the discharge of the legal debt. Mr. Puneet Mittal, Counsel for the applicant further contended that the said fact could be rebutted by the drawer only by adducing evidence on record, in defence and not merely by giving some suggestions to the witness of the complainant in cross-examination. Mr. Puneet Mittal further submitted that the applicant had sufficiently proved before the Trial Court that three invoices were separately raised in the name of respondent No.1 besides proving the pre-paid ticket advise for the passenger travelling on behalf of the a