The burden of proof on the accused to rebut the presumption under Section 139 and 118 of N.I. Act must be discharged by preponderance of probabilities, and the demand notice must be drafted as per the requirement of Section 138 of N.I. Act.

SURESH KAIT, J.

1. By way of the present four appeals filed under section 378 (4) & (5) of Cr.P.C. appellant assailed the common judgment dated 20.04.2012 passed by ld. Trial Court four similar complaints filed under Section 138 Negotiable Instruments Act, 1881 being CC No. 1979 to 1982/10/05 thereby acquitted the respondent in all the cases.

2. The aforementioned complaints had arisen out of the transactions which took place between the parties during relevant period. Therefore, in the interest of justice and to avoid judicial conflict on decision, all appeals are being decided by way of a common judgment.

3. As per the case of the appellant/complainant, respondent/accused took a friendly loan of Rs.8.25 Lac from the complainant for a short term and agreed to repay the said amount with interest @ 18% per annum and in order to secure repayment of said loan, respondent delivered 10 post-dated cheques for a sum of Rs.50,000/- each drawn on Corporation Bank, CGO Complex, Lodhi Road, New Delhi to the appellant. Out of the aforesaid 10 cheques, four cheques, being no. 965683, 965681, 965684 and 965682 dated 01.07.2005, 10.07.2005, 01.08.2005 and 14.07.2005 respectively for a sum of Rs.50,000/- each were dishonoured on their presentation on account of insufficient funds. The factum of dishonoured cheques were brought to the notice of the respondent by way of legal notice dated 06.09.2005, which was duly acknowledged by him vide acknowledgment card. Despite, the respondent had not complied with the demand as made in the said legal notice. Consequently, complaint cases under Section 138 of N.I. Act were filed.

4. On appearance of accused, notice under Section 251 Cr.P.C. for the offence punishable under Section 138 N.I. Act was served upon him on 14.02.2007, to which he pleaded not guilty.

5. The complainant was the sole witness and has examined himself as CW1. He deposed as per the contents of the complaint and tendered the documents Ex.CW1/1 to CW1/18. After conclusion of the complainant’s evidence, statement of respondent under Section 313 Cr.P.C. was recorded and all incriminating evidence was put to him, to which he explained that cheques were taken by the complainant from him so that on the basis of those cheques he may take loan from some other persons in connection with his garment business.

6. In defence, respondent examined Smt. Shalini Goel as DW1 and himself appeared in the witness box as DW2.

7. In order to attract liability of respondent under Section 138 N.I. Act, 1881, the appellant was required to prove the following:

(a) that the accused issued the cheques bearing No. 965683 dated 01.07.2005, No. 965681 dated 10.07.2005, No. 965684 dated 01.08.2005 and No. 965682 dated 14.07.2005, each for a sum of Rs.50,000/- to the complainant for the discharge of legal debt / liability;

(b) that the complainant presented the said cheques to the bank within a period of six months from the date on which the same were drawn or within the period of their validity, whichever was earlier;

(c) that the said cheques were dishonoured by the banker of the accused due to insufficiency of funds in the account of the accused;

(d) that the complainant made the demand for the payment of the said amount of cheques by giving a notice in writing to the accused within 30 days from the receipt of information regarding dishonour of the cheques;

(e) that the accused failed to make the payment of the amount of the cheques within 15 days of the valid legal notice of the demand; and

(f) that the complainant made a complaint against the accused within one month from the date on which the cause of action under clause (c) of the Proviso to Section 138 of the N.I. Act accrued to him.

8. Ld. Counsel appearing on behalf of the petitioner submitted that the appellant admitted the ingredients of (b), (c), (d) and (f) and submitted that the cheques were issued by the respondent for discharge of the liability arising out of a friendly loan given by the ap