The presumption of the existence of a legal liability under the Negotiable Instruments Act is rebuttable, necessitating the complainant to provide sufficient evidence of such liability.

JUDGMENT :

Radhakishan Agrawal, J.

1. This appeal has been preferred by the Complainant under Section 378(4) of the Code of Criminal Procedure, 1973, against the judgment dated 15.03.2013 passed by the Third Additional Judge to the Court of First Additional Sessions Judge, Bilaspur, C.G. in Criminal Appeal No.22/2013, whereby the respondent/accused was acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act, 1881’).

2. Brief facts of the case are that the complainant and the respondent had allegedly entered into an agreement for the purchase of a building developed by the accused/respondent at Kanchan Vihar, Sarkanda, Bilaspur. In pursuance of the said agreement, the respondent is stated to have issued a cheque dated 20.08.2009 for Rs.3,00,000/-, which, upon presentation, was dishonoured with the remark “insufficient funds”. After service of statutory notice and the respondent’s failure to make payment, the complainant filed a complaint under Section 138 of the Act, 1881.

3. After trial, the learned Judicial Magistrate First Class, upon appreciating the entire evidence and material brought on record, convicted the accused/respondent under the aforesaid offence and sentenced him to undergo simple imprisonment for one year and further directed him to pay Rs.3,00,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C., with a default sentence of two months’ simple imprisonment in case of non-payment. Aggrieved by the said judgment, the respondent preferred an appeal, which was allowed by the Appellate Court, resulting in his acquittal. Hence, the present appeal by the complainant.

4. Learned counsel for the appellant/complainant submits that the learned Appellate Court is unjustified in acquitting the accused/respondent by recording perverse findings. He further submits that from the statement of the complainant, it is evident that the accused/respondent had issued the cheque in question in discharge of his legal liability and the alleged cheque bears his signature. He also submits that a legal notice was duly served upon the accused/respondent and that the statements of the defence witnesses are neither reliable nor credible, being afterthoughts and despite such clear and cogent evidence, the learned Appellate Court committed a grave error in acquitting the accused/respondent without properly appreciating the evidence on record in its correct perspective. Therefore, the impugned judgment of acquittal suffers from perversity and illegality and is liable to be set aside.

5. Learned counsel for the accused/respondent, on the other hand, supports the judgment passed by the learned Appellate Court and submits that the complainant has utterly failed to establish the existence of any legal debt or liability. No agreement whatsoever was executed between the parties and the complainant has not produced a single reliable document to prove the alleged transaction or payment of earnest money. He further submits that the accused/respondent never issued the cheque in question towards discharge of any legal liability, and the complainant has also failed to explain the circumstances under which the alleged cheque came into his possession. In these circumstances, the foundational facts necessary to attract the statutory presumption under Section 139 of the Act, 1881, are absent and, therefore, the presumption is not applicable in the present case; even otherwise, the said presumption stands duly rebutted as the accused has proved that the alleged cheque was never issued by