IMPORTANT POINT
Bare denial of passing of consideration and existence of debt, would not serve purpose of accused to seek dismissal of complaint.

A.P. Bhangale, J.— Heard learned counsel for the parties. Admit. Taken up for final disposal forthwith by consent of parties.

2. By this appeal, the appellant (original complainant) challenges judgment and order dated 25.9.2009 passed in Summary Criminal Case No. 7227 of 2007 by learned Judicial Magistrate, First Class, Court No.2, Akola whereby respondent (accused) was acquitted of offence punishable under Section 138 of the Negotiable Instruments Act on the ground that the complainant failed to prove that the cheque No.338343 dated 11.9.2007 drawn on Akola Urban Co-operative Bank Limited, Akola was issued for discharge of legally enforceable debt or liability.

3. It is not in dispute that the said cheque had returned dishonoured for funds insufficient and notice demanding payment was also served, but the accused did not pay the amount demanded by notice.

4. Facts, briefly are:

The complainant contended that he had good cordial relations with the accused and the accused had demanded Rs. 45,000 which complainant paid in lieu thereof the accused had issued the cheque in question with promise and assurance that it would be honoured which returned dishonoured for non-payment due to “funds insufficient” and remained unpaid despite demand notice dated 20.9.2007 in writing served upon teh respondent/accused on 25.9.2007. The accused failed to pay within stipulated period. Hence, complaint was filed on 3.11.2007.

5. The accused denied the charge (Exhibit 23) on the defence that the complainant had misused the cheque which was taken from the accused by brother of the complainant as help for his election in the year 2006.

6. Learned Advocate for the appellant submitted with reference to evidence that the accused is known to the complainant since childhood and had cordial relations and the cheque in question was given by him to the complainant as hand-loan was advanced in the sum of Rs.45,000 only from the complainant. Admittedly, the complainant had money in the bank and he had expressed his readiness and willingness to produce his bank pass book from both the bank accounts, but the complainant was not asked to produce the bank pass book in the Trial Court. There are suggestion in the cross-examination as the case of the defence was put up that the cheque in question along with one more cheque were given as security to the brother of the complainant. Learned Advocate for appellant therefore submitted that assuming for the sake of argument that the cheque in question was given as security (for repayment), it was not given as piece of paper to be retained by brother of the complainant, but it was enforceable when the accused had failed to repay the sum of Rs. 45,000 taken as hand loan. Hence, after written notice of demand was served and the accused failed to repay the loan, the complainant was entitled to enforce the security in the form of cheque by insisting upon payment on that basis.

Learned counsel relied upon statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act and ruling in Balaji Agencies Pvt Ltd. v. Vilas Bagi and Anr.1, to substantiate claim of the complainant to argue that the accused was liable to be convicted as under Section 138 of the Act any cheque drawn by a person on an account maintained by him with bank for payment of any amount of money to another person for discharge, in whole in part of any debt or liability, is returned by the bank unpaid, is made enforceable. Learned Advocate for the appellant further argued that in view of statutory presumption in favour of the complainant under Section 118 of the Negotiable Instruments Act, until contrary is proved, it must have been presumed by the learned Trial Magistrate that the cheque was drawn for consideration and it was negotiated for consideration and the complainant was entitled to enforce the cheque as holder in due course as under Section 139 of the Act, it shall be presumed, unless contrary is proved that the holder of a cheque