Point of law : Presumption Under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

JUDGMENT :

1. Present appeal has been filed by the appellant – Bharatbhai Shakarchand Shah (Original Complainant) (hereinafter referred to as the “Appellant”) under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 13.7.2006, passed in Criminal Case No. 1002 of 2004 by the learned Metropolitan Magistrate, Court No.20, Ahmedabad City, recording the acquittal against Respondent No.1 – Pravinbhai Trikamlal Thakkar (Pujara) (Original Accused) for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The facts, in brief, are that the Appellant has lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.1,00,000/- from him for business purpose and to repay the same, he issued two Cheques bearing No. 531282 and 531283, both dated 25.6.2004 drawn on Manekchowk Co.Op. Bank, which, the complainant presented in bank, but the same was returned by the bank with an endorsement “Accounts Closed” and hence, the complainant issued a legal notice dated 1.7.2004 to the respondent No. 1 through his advocate by RPAD, however, since the respondent No. 1 did not repay the said amount, the complainant was constrained to file complaint before the Court of learned Metropolitan Magistrate, Court No.20, Ahmedabad City under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”).

3. Upon such complaint being filed and subsequent service of summons upon the respondent No. 1, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dated 13.7.2006, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant has preferred the present appeal.

4. Heard, learned advocate Mr. Amrish K. Pandya for the appellant and learned APP Ms. Monali Bhatt for the Respondent No.2 – State. Respondent No.1 is served but none has remained present on his behalf.

5. Learned advocate Mr. Amrish K. Pandya for the appellant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the issued cheque in question was duly signed by the respondent No. 1, and came to be dishonoured when presented before the bank with the endorsement “Account Closed”. Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant and not for the security purpose. Learned Advocate for the Appellant has further contended that the Appellant has proved his case beyond reasonable doubt by leading cogent and conclusive evidence. It is also contended that the order passed by the learned Trial Judge is illegal, improper, unjust against the settled principles of law. It is further contended that the learned Trial Judge ought to have considered the evidence on records stating that the Appellant has proved the cheque in question i.e. Exh. 8 and 9 issued by the Respondent No.1, and the Appellant has also proved the bank advice, showing the endorsement “Account Closed” at Exh.11 and 12. It is further contended that the statutory notice was issued to the Respondent No.1 within 15 days at Exh.12 to 15. It is also contended that the Appellant himself was examined at Exh.3 and he proved all the aforesaid and other relevant documents undisputedly in accordance with law. The learned Advocate for the Appellant has further contended that the learned Trial Judge erred in accepting the defence, advanced by the Respondent No.1 stating that the Appellant has not to recover any legal consideration from the Respondent No.1 as discussed in the impugned judgment and order. It is further contended that the learned Trial Judge has not considered that the Respondent No.1 has clearly stated in his deposition under Section 313 of the Cr. PC that he has taken money from the appellant. Therefore, it is clear that the said cheques were issued by him, whi