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 – State under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 27.01.2005, passed in Criminal Case No. 2498 of 2000 by the learned 2nd Joint Judicial Magistrate First Class, Jamnagar, recording the acquittal.

2. The facts, in brief, are that complainant – Hansraj Jadavji Kanani, resident of Taluka: Falla, Dist.: Jamnagar lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.1,50,000/- from him for business purpose and to repay the same, he issued a Cheque bearing No. 187953 dated 05.11.1999 drawn on The Commercial Coop. Bank Ltd., Patel Colony Branch, Jamnagar, which, the complainant presented in bank, but the same was returned by the bank with an endorsement “insufficient fund” and hence, the complainant issued a legal notice dated 17.11.1999 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 Judicial Magistrate First Class, Jamnagar under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”).

2.1 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 27.01.2005, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant – original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. Nirav C. Thakkar for the appellant – original complainant, learned advocate Mr. Premal Rachh for the respondent No. 1 and learned APP Mr. Dharmesh Devnani for the respondent No. 2 – State.

3.1 Learned advocate Mr. Thakkar for the appellant – original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as issued, cheque in question was duly signed by the respondent No. 1, and came to be dishonoured when presented before the bank for insufficiency of fund. 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. Further, it is submitted that the learned trial Judge ought to have held that legal notice upon the respondent No. 1 was issued within the stipulated time. Further, the learned advocate has stated that the learned trial Judge ought not to believe the accused that the cheque was misused because if the cheque would not have been returned, the accused would have taken some steps. Further, in his submission, the learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him. It is also submitted that for other cheque, the appellant had filed another complaint, wherein, present defence was not taken.

3.2 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt, however, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

4. Per contra, learned advocate Mr. Premal Rachh for the respondent No. 1 – accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclu