The presumption of consideration under Section 139 of the N.I. Act shifts the burden to the accused to prove non-existence of debt, which was not done in this case.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. The present appeal has been directed against the judgment and order dated January, 15th 2019 passed by Metropolitan Magistrate, 9th Court in Complaint Case no. 7232 of 2010. By the impugned judgment, learned Court below was pleased to dismiss the complaint and thereby acquitted the accused person under section 255 (1) of Cr.P.C. in a proceeding under section 138 of Negotiable Instrument Act, 1881(in short N.I. Act).

2. The complainant’s case in brief is that the complainant/appellant herein is a government employee under the state of West Bengal and was posted at Malda District Hospital in the year 2007-2008. The accused person/opposite party no.1 herein was colleague of the petitioner herein at Malda District hospital, who asked for some financial help for her personal needs. Pursuant to such request, the appellant herein had extended financial help to the accused/opposite party to the tune of Rs. 5 lakhs and the opposite party no.1 accused assured to pay entire due amount by December, 2009. In discharge of her legally enforceable debt and liability, she issued the impugned cheque being no. 989003 dated 26.12.2009 for a sum of Rs. 5 lakhs drawn on Uco Bank. When the complainant presented the said cheque to his banker, it got dishonoured on 01.01.2010 on the ground of “insufficient fund”. Thereafter appellant herein sent legal notice on 27th January, 2010. The said notice was received by the opposite party no.1/ accused on 02.02.2010 and even after receipt of such notice the opposite party no.1 did not take any step to pay the legally enforceable debt to the appellant which compelled the complainant to lodge the above mentioned complaint case no. 7232 of 2010. During trial the appellant was examined and cross examined and on the other hand the accused was also examined under section 313 of the Code of Criminal Procedure.

3. Though, the accused stated that he would produce witness in support of her defence during examination under section 313 Cr.P.C., but she did not examine any witness on her behalf. Learned Trial judge after considering the documentary as well as oral evidence was pleased to acquit the opposite party no. 1/accused by the impugned judgment dated 15.01.2019 from the charges under section 138 of the N.I. Act. mainly on the ground that complainant lacked capacity to give loan, which makes the debt not legally enforceable.

4. Being aggrieved by the said judgment of acquittal passed by the court below, Mr. Ahmed on behalf of the appellant submits that the complainant has categorically stated in his complaint as well as in affidavit that the respondent herein being the colleague borrowed Rs. 5 lakhs from the appellant and the accused/respondent herein acknowledged the same by issuing a single money receipt which has been marked as exhibit-2 in the present case. The complainant during cross examination has categorically stated that the signature appearing in the said money receipt is of the opposite party and the opposite party failed to rebut the same. The accused/respondent herein has failed to produce any document and or evidence to show that he is not indebted to the appellant to the tune of Rs. 5 lakhs.

5. Mr. Ahmed argued that unfortunately the trial court after discussing about the presumption arises under section 139 of the N.I. Act has wrongly proceeded to question evidence on source of funds for advancing locus to accused by the complainant, and pointed out want of examination of relevant witnesses and /or evidence. This approach runs contrary to the law laid down by the Apex Court. In this context he relied upon the judgment of Rohitbhai Jivan vs. State of Gujarat & another reported in (2019) 18 SCC 106.

6. Mr. Ahmed further argued that there appears to be no dispute that the accused signed the dishonored cheque and once execution of cheque is admitted and the signature of the accused is proved on the cheque, it is a legal presumption under section 139 of the N.I. Act that t