IMPORTANT POINT
Every kind of dishonour of cheque is not an offence.

R.S. Chauhan, J.—The appellant, Promod Kumar is aggrieved by the judgment dated 29.08.2007 passed by Judicial Magistrate (North), Udaipur, whereby the learned Magistrate has acquitted the respondent, Arjun Kumar, for offence under Section 138 of the Negotiable Instruments Act (‘the Act’, for short).

2. In brief, the facts of the case are that the appellant lodged a complaint under Section 138 of the Act before the learned Magistrate. In the complaint, he claimed that on 01.08.2001, Arjun Kumar had borrowed Rs.50,000/- from him. In order to repay the said loan, he had issued a Cheque, Cheque No.15406 dated 24.04.2001, drawn on Mewar Anchalik Gramin Bank, Branch Udaipur. He further claimed that on 28.04.2001 he presented the cheque for encashment; on 30.04.2001 he was informed that the cheque could not be honoured, as the account was already closed. Thereafter, on 03.05.2001 he sent a registered notice to Arjun Kumar through his lawyer. The said notice was received by Arjun Kumar on 08.05.2001. However, despite the receipt of the said notice, Arjun Kumar did not repay the said amount. Therefore, the complaint under Section 138 of the N.I. Act was filed.

3. In order to buttress his case, the complainant, Pramod Kumar, examined himself as a witness, and submitted five documents. On the other hand, in his statement under Section 313, Cr.P.C., Arjun Kumar claimed that he had given a blank cheque to the complainant’s brother by way of security, as they had business transactions. Moreover, the date, and the amount in the cheque was filled in by the complainant himself. Therefore, he was not liable for offence under Section 138 of the Act. In order to buttress his plea, Arjun Kumar examined himself as a witness and submitted five documents. After going through the oral and documentary evidence, vide judgment dated 29th August 2007, the learned Magistrate acquitted the accused-respondent. Hence, this criminal leave to appeal before this Court.

4. Mr. Sanjay Mathur, the learned counsel for the complainant-appellant, has vehemently contended that the learned Magistrate has failed to appreciate the evidence in proper perspective. Secondly, that once it was proven that the cheque was duly signed by Arjun Kumar, a presumption should have been drawn against him. However, the learned Magistrate has drawn a presumption against the complainant himself and has erred in acquitting Arjun Kumar for the offence under Section 138 of the Act.

5. On the other hand, Mr. Anurag Shukla, the learned counsel for accused-respondent, has strenuously contended that from the very initial stage of the case, the accused-respondent has consistently maintained that he had given a blank cheque to the appellant’s brother by way of security. Moreover, the account was closed in the year 2000. The fact, that the account was closed in the year 2000, has been duly proved by Ex. D/4 and D/5. Furthermore, he has been claiming that the blank cheque was completed by the appellant – a fact admitted by the appellant himself in his testimony. Therefore, after critically analyzing the evidence, the learned Magistrate was justified in acquitting the accused-respondent.

6. Heard the learned counsel for the parties, and perused the impugned judgment.

7. Of course, it is for the complainant to firmly establish the foundation of the facts of the case. Once the foundation of the facts of the case is laid down, the burden of proof shifts on to the accused. Although there is a presumption under Section 139 of the Act, but nonetheless it is a rebuttable presumption. Since it is a presumption of fact, it can be rebutted through preponderance of evidence.

8. In the present case, the complainant has been able to prove that the cheque was, indeed, signed by the accused-respondent. However, the accused has raised the plea that the bank account was closed in the year 2000—a plea substantiated and corroborated by Ex.D/4 & D/5. Secondly, he has been able to prove the fact that the cheque