The main legal point established in the judgment is the rebuttable nature of the presumption in favor of the holder of a cheque under Sections 118 and 139 of the N.I. Act, emphasizing the burden of proof on the accused to provide a probable defense and prove that the cheque was not issued against a legal liability.

JUDGMENT :

1. In the present case, dishonour of cheque number 651151 amounting to Rs.4,00,000/- (Four lac rupees) dated 02.02.2007 (Ex.P/1) of Punjab National Bank under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act”) was in question.

2. It is an undisputed fact that complainant Ashok Saha is an Electronics businessman of Dallirajhara and accused Anup Khobraghade is an employee of Bhilai Steel Plant. Both the parties were known to each other being customer of complainant. It is also undisputed fact that cheque in question (Ex.P/1) bears the signature of accused Anup Khobraghade and parties have an account in Punjab National Bank, from where cheque in question was dishonoured on 12.02.2007. The reason for dishonour has been shown in memorandum of bank (Ex.P/3) that accused Anup Khobragade does not have sufficient funds in his account. Thereafter, Complaint Case No.123 of 2009 filed before the Judicial Magistrate First Class, Rajhara, District Durg, Chhattisgarh (hereinafter referred to as “trial Court”).

3. After considering the facts and circumstances of the case as well as after hearing both the parties, learned trial Court vide its judgment dated 27.03.2009, convicted the accused for the charge levelled against him under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for 3 months and to pay Rs.4,50,000/-(Four lacs fifty thousand rupees) as compensation to the complainant within a period of one month under Section 357(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”).

4. Being aggrieved with the decision of the trial Court regarding above conviction and order of sentence, accused has filed Criminal Appeal No.34 of 2009 before the Additional Sessions Judge (F.T.C.), Balod, District Durg, Chhattisgarh (hereinafter referred to as “Appellate Court”) and after considering materials on record as well as after hearing learned counsel for the parties, allowed the appeal filed by the accused and acquitted him for the offence punishable under Section 138 of the N.I. Act vide its judgment dated 11.05.2010.

5. The said acquittal has been challenged by complainant Ashok Saha in this Acquittal Appeal No.10 of 2011.

6. On behalf of complainant, Deputy Manager of Punjab National Bank, namely, Y.P. Mishra was examined in the trial Court, whereas it was stated by the accused in his defence that in view of missing cheque in question as well as cheque numbers 651151 to 651160, he had requested to stop the payment at police station as well as bank and in this regard, he has examined Head constable Khemlal as DW-1 and Krishna Mohan as DW-2, who is employee of Punjab National Bank. Documents were presented by both the parties in support of their case and relying on them, case of complainant was found proved and as such, judgment of conviction and order of sentence was passed by the trial Court, whereas Appellate Court has held that complainant has failed to prove that when he gave the amount to the accused and by failing to prove the availability of that amount, case of complainant has not been proved beyond doubt, as such, judgment of conviction and order of sentence passed by the trial Court was set aside and accused has been acquitted.

7. Learned counsel for the complainant/appellant submits that Appellate Court has made an error in understanding the presumption under Sections 118 and 139 of the N.I. Act. Accused neither responded to the notice nor got himself examined in his defence. Under the aforesaid provisions, burden of rebutting the presumption in favour of complainant was on the accused, but he has failed to bear the above burden. Therefore, decision of acquittal is not worthy of being sustained in the context of facts and circumstances of the case. He further submits that judgment of acquittal passed by the Appellate Court be set aside and accused should be convicted. He placed reliance in cases of Rohitbhai Jivanlal Patel v. State of Guja