The issuance of a cheque signifies a legally enforceable debt under Section 138 of the N.I. Act, and the burden to prove otherwise lies with the accused, not the complainant.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The judgment and order of acquittal dated 09.08.2019, passed by the MM 19th court, Calcutta in complaint case no. CS-00113168/2016, in a proceeding under section 138 of the Negotiable Instrument Act (in short N.I. Act) is the subject matter of challenge in the present appeal, preferred under section 372 of the Code of Criminal Procedure.

2. The case of the appellant/complainant, shorn of unnecessary details is to the effect that the appellant/complainant herein was approached by the Respondent herein for borrowing a friendly loan to the tune of Rs. 6,50,000/- . Believing upon the representations made by the respondent herein the appellant agreed to lend him the aforesaid amount at the interest rate of 17% per annum for a period of one year. Subsequently the appellant had issued a cheque to the tune of Rs. 6,50,000/- to the respondent and said cheque was encashed on 31.08.2015. Further case of the appellant is that during the course of such period the opposite party herein, towards interest on the aforesaid borrowed sum of money had issued cheques to the tune of Rs. 16,250/- on 01.012.2015, 16,250/- on 29.02.2016, Rs. 7042/- on 29.03.2016 and Rs. 8,288/- on 25.05.2016 in favour of the appellant.

3. However the respondent did not pay the full interest for the entire period of loan and in discharge of the said existing liability or legal debt, the respondent had issued the impugned cheque bearing no. 000555 dated 18th August, 2016 to the tune of Rs. 6,50,000/- in favour of complainant Kishan Kr. More (HUF). Said cheque was signed by the respondent as authorized signatory of M/S Manpuria Enterprises. Subsequently the appellant herein presented the said cheque for encashment which was returned unpaid with the endorsement “funds insufficient”. The appellant received the said cheque with cheque return memo dated 15th September, 2016 through his banker and thereafter a demand notice was issued to the respondent herein in his four different addresses requesting him to pay the cheque amount. On failure to do so, the appellant states that he was compelled to initiate the instant proceeding under section 138 of the N.I. Act.

4. During the course of trial the appellant has adduced evidence as PW- 1. The respondent himself deposed as DW-1 reiterating the statement made by him during examination under section 313 of the Code. After considering the rival contentions of both the parties and the evidence along with materials on record, the court below acquitted the respondent herein.

5. Being aggrieved by the said impugned judgment, of acquittal Mr. Sourav Banerjee, learned counsel for the appellant herein contended that the evidence adduced by the parties clearly go to establish that there existed a legally enforceable debt, in connection with which the disputed cheque was issued by the accused person but inspite of such evidence of unimpeachable character and of sterling quality, the court below passed the impugned order of acquittal. The court below failed to appreciate that the appellant herein and the defence witness had revealed the factum of subsequent payment in the nature of interest on the principal loan amount as agreed by and between the parties and both the parties had admitted during their examination before the court that interests have been paid by the respondent and the same has been received by the appellant and inspite of such admitted position about loan transaction and payment of part interest, the order of acquittal has been recorded by the court below, in ignoring the provisions laid down in section 58 of the Evidence Act. Infact in the instant case, all the necessary ingredients as required under section 138 of the N.I. Act had been complied. The money receipt issued by respondent herein has been proved and has been marked as exhibit 3, which clearly reveals that there exists a legally enforceable debt to the tune of Rs. 6,50,000/-. Said exhibit 3 clearly demonstrates that the said amoun