The presumption of liability under Section 139 of the Negotiable Instruments Act favors the cheque holder unless rebutted by the accused, who must present evidence to challenge the presumption.

JUDGMENT :

SANJAY KUMAR JAISWAL, J.

1 This appeal is preferred under Section 378(4) of the Code of Criminal Procedure, 1973, against the judgment dated 23.09.2021 passed in Criminal Appeal No. 108/2019 by learned Sessions Judge, Rajnandgaon, District - Rajnandgaon (C.G.), whereby the respondent has been acquitted for the offence punishable under Section 138 of N.I. Act. Criminal Appeal No. 108/2019 arose out of judgment dated 30.10.2019, in Criminal Case No. 3271/2017 by the Judicial Magistrate First Class, Rajnandgaon, District – Rajnandgaon (C.G.), wherein the respondent was convicted and sentenced for the offence punishable under Section 138 of N.I. Act.

2 The facts of the case, in brief, were that complainant/appellant Kumaril Hirwani, describing accused Vishnu Soren as a neighbour and acquaintance of his brother-in-law, filed a complaint alleging that the accused had borrowed Rs.1,50,000 (one lakh fifty thousand rupees) from him to meet household needs. To repay the amount, the accused provided the complainant with an account payee cheque No. 022512, dated 05/05/2017, for the amount of Rs.1,50,000 (Ex.P-1), from his account with UCO Bank, Naya Raipur branch. The complainant deposited the check in his account with the State Bank of India, Dongargaon branch, for payment. However, according to the memorandum received from the bank, Exhibit P-2, dated 21/06/2017, the check was returned unencashed due to insufficient funds in the account. Subsequently, the complainant sent a legal notice (Exhibit P-3) to the accused demanding the amount, the registered postal receipt of which is Exhibit P-4. The accused refused to accept the notice and was returned as Exhibit P-5 with a note. When the accused failed to pay the check amount within 15 days of receiving the notice, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act on 07/09/2017. During trial, only the complainant examined himself. In his statement under Section 313 of the Code of Criminal Procedure, the accused denied the complainant's evidence, declared himself innocent, and presented no evidence in his defence.

3 Vide judgment dated 30/10/2019 passed by the trial Court, Judicial Magistrate First Class, Rajnandgaon, District-Rajnandgaon, (C.G.) in Criminal Case No. 3271/2017 “Kumaril Hirwani vs Vishnu Soren”, the accused was convicted and sentenced as under:-

4 The Sessions Court allowed the appeal against the above conviction and sentence of the trial Court and acquitted the accused. Hence, this appeal.

5 Learned counsel for the appellant submits that the learned appellate Court committed gross error by holding that the complainant had not examined any witnesses in support of his complaint and also held that the complainant had neither mentioned the date on which the said cheque was dishonored and returned to his bankers State Bank of India Branch Dongargaon nor the complainant had mentioned the date on which the accused had refused to accept notice which was served on him by complainant. He further submits that the Sessions Court overlooked the fact that the accused neither denied his signature on the cheque nor denied the fact of issuing the cheque. In such circumstances, Section 138 of the Negotiable Instruments Act presumes in favour of the complainant. The Sessions Court's conclusion in this regard is not justified, and the acquittal is not sustainable. Therefore, the appeal is liable to be allowed.

6 Learned counsel for the respondent/accused supported the impugned judgment, submitting that the learned trial Court has passed an appropriate order after going through the entire oral as well as documentary evidence, which does not call for any interference.

7 Heard learned counsel for the parties and went through the entire record with utmost circumspection.

8 The first ground on which the accused was acquitted by the Sessions Court was that the complainant had failed to prove that the cheque in question was given to him by the accused in full or i