The presumption under Sections 139 and 118 of the Negotiable Instruments Act mandates that once a cheque's signature is established, it is presumed to be issued for a debt, shifting the burden to the accused to prove otherwise.

Order :

(Narendra Kumar Vyas, J.)

1. The appellant has filed present acquittal appeal under Section 378(4)of the Criminal Procedure Code by which learned Judicial Magistrate First Class, Raipur in Criminal Case No. 5175 of 2019 has acquitted the accused for commission of offence under Section 138 of the Negotiable Instrument Act, 1881 ( in short “the N.I. Act, 1881”).

2. The brief facts reflected from the record are that the appellant is running business of Air Conditioners and spare parts. It is also the case of the complainant that accused had purchased spare parts through different invoices for Rs. 10,61,196/- and has given cheques of Rs. 8,20,000/- out of which one cheque bearing No. 490039 of Rs. 3,00,000/- drawn at State Bank of India Branch, Smriti Nagar, Bhilai was dishonored and returned to the appellant with endorsement that the said cheque was dishonored due to “insufficient fund” in the account on 26.06.2019. The complainant has sent legal notice (Exhibit P/3) on 04.07.2019 to accused demanding amount of cheque to the tune of Rs. 3,00,000/- which was neither replied nor the amount was given though notice was served upon him, therefore, he has filed an application under Section 138 of the the N.I. Act, 1881.

3. The appellant/complainant to substantiate his claim has exhibited documents namely dishonored cheque (Ex. P/1), cheque return memo (Ex. P/2), Legal Notice (Ex. P/3), postal receipt (Ex. P/4), consignment (Ex. P/5), invoice (Ex. P/6 to Ex. P/17), delivery memo (Ex. P/18 to Ex. P/28). The appellant/complainant examined himself by way of an affidavit under Section 145 of the the N.I. Act, 1881 reiterating the stand taken in the complaint. The witness was extensively cross- examined by the accused wherein the complainant has categorically stated that he has sent the material to the accused to tune of Rs. 10,61,196/- out of which the accused has given a cheque amounting to Rs. 8,20,000/- on various dates, but he has denied the fact that the entire amount of Rs. 8,20,000/- has been received by him out of which one cheque of Rs. 3,00,000/- was dishonored due to insufficient fund. He has also denied that he has claimed excess amount after receiving the amount of Rs. 10,61,196/-.

4. The accused examined himself as DW-1 and also examined under Section 313 of Cr.P.C. before the trial Court who has denied the allegations and also stated that he has given one cheque as security as he used to purchase the material from the complainant and no liability exists against him. He has stated that he has put signature in the cheque, but all the entries have been recorded by other person. The witness was cross-examined by the complainant wherein he has admitted that whatever material he has purchased from the complainant he takes a cash memo and voluntarily stated that he used to give receipt in his letter pad which is exhibited as Exhibit D-1 to D- 30. He has voluntarily stated that it is a delivery memo. The witness has also admitted that he has received legal notice (Exhibit P/3) and admitted that since he has not given the reply, therefore, he has not produced the same. He has also admitted that in exhibit D-1 to D-30 it is not mentioned that the complainant has received the payment of material mentioned in these documents. He has also admitted that in exhibit D-1 to D-30 he has not put his signature and voluntarily stated that the complainant’s person used to give delivery memo and collect the cash money. He has also admitted that he has submitted a complaint before Police (Exhibit D-32) wherein he has mentioned about 5 cheques, but he has not mentioned the cheque numbers. He has voluntarily stated that for every financial year one cheque was given to the accused as security, but has not returned the same.

5. Learned trial Court after appreciating the evidence the material has dismissed the complaint by recording its finding that the complainant is unable to prove that the accused has given a cheque towards any liability, therefore,