IMPORTANT POINT
When a cheque is received by a holder it is obligatory for Court to presume that it is a cheque received for discharging of legally enforceable debt or liability.

Bhangale A.P., J.—By means of this appeal, the appellant (original complainant) has challenged the validity, legality and correctness of the judgment and order dated 11th June, 2008 in Summary Criminal Case No. 2130/2007 by the learned Judicial Magistrate, First Class, Court No.1, Yavatmal whereby the accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The fact, in brief are these: the complainant Credit Co-op. Society had filed a complaint in the Court of learned Judicial Magistrate, First Class Yavatmal which was registered as Summary Criminal Case No. 2130/2007. The complainant alleged that it is a registered society doing the business of advancing loans to its members. Smt. Sadhana Dharamchandraji Kochar is the Manager of the said society doing business in the name as “Yavatmal Zilla Mahesh Nagari Sahakari Pat Sanstha Maryadit, Yavatmal. The accused is a resident of Umarsara Tq. & Dist. Yavatrnal. He needed loan for construction of a house in the sum of Rs. 5,00,000 which was sanctioned by the complainant-society, after the accused had executed necessary documents including promissory note etc., pursuant to the loan application dated 25.4.2006 made by the accused. The accused had also entered into an agreement with the complainant-society (Ex. 47). The accused had acknowledged receiving a sum of Rs.3,00,000 on 27.6.2006 by executing a receipt; while he acknowledged receiving sum of Rs.1,00,000 on 16.8.2006 and executed a receipt. The complainant maintained account of loan in respect of the sums advanced to the accused and until 19.6.2007 an amount of Rs. 5,41,559 was due and payable by the accused. The accused had issued a cheque bearing No. 28442 on 20.4.2007 in the sum of Rs. 1,40,000 in favour of the complainant towards repayment of loan amount due. The cheque was presented by the complainant with Washim Urban Co-operative Bank Limited, Washim on 23.4.2007, but the said cheque was returned dishonoured from the Yavatmal Central Co-operative Bank Limited, Yavatmal Branch, with remarks “funds insufficient”. The complainant sent notice of demand in writing through an Advocate on 14.5.2007. The notice was sent by registered post as well as under certificate of posting. The registered envelope returned with postal remarks “not claimed returned to sender” while the accused had received the notice sent under certificate of posting. Therefore, despite waiting for the accused to repay the demanded amount, he did not pay. Thus, the complainant was constrained to file the abovereferred complaint.

3. The complainant had tendered evidence by way of affidavit and also produced the relevant documents in support of the complaint through Smt. Sadhana Dharamchandji Kochar (Manager of the complainant). She was cross-examined on behalf of the accused on 5.4.2007. The accused chose to deny his liability and suggested that false complaint case is filed. The accused also tendered an affidavit in evidence and denied having received the entire sum of Rs. 5,00,000 as alleged. The accused also alleged that the complainant-society (through its present Manager) Mr. Kantilal Pande conspired to cheat and obtained 36 blank cheques from him at the time of advancing the loan amount by filling in the false date, amount and contents, falsely prosecuted the accused. The accused was also cross-examined on behalf of the complainant. In the course of his cross-examination, he admitted that the Pat Sanstha intimated him that outstanding loan amount against him was Rs.1,70,000. According to him, after obtaining loan in the sum of Rs.45,000 he never obtained another loan from the complainant Pat Sanstha. In the course of the cross-examination, the accused did not dispute that the complainant Pat Sanstha had sanctioned a loan of Rs. 5,00,000 to the accused and at the tie of execution of agreement he had agreed to repay the loan amount by installment of Rs.14,000. He also agreed that the Bank had disburs