Point of Law: Presumption under Section 139 of NI Act merely raises a presumption in favour of a holder of cheque that same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under said section.

JUDGMENT :

1. This appeal is filed by the appellant – original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 16.09.2006, passed in Criminal Case No. 359 of 1999 by the learned Judicial Magistrate First Class, Unjha, recording the acquittal.

2. Nutshell facts are that appellant – original complainant – Bhumika Lease Finance Ltd. through its Assistant Manager – Jitendrakumar Amrutlal Brahmbhatt, lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.45,000/- from the complainant company for development of his business. Since, the respondent No. 1 did not pay the instalments and on being approached by the complainant, he issued a Cheque bearing No. 0170486 dated 20.04.1999 drawn on Bank of Baroda, Ambaji Branch for Rs.2,30,000/-, which, the complainant presented in bank, but the same was returned by the bank with an endorsement “Fund Insufficient” and hence, the complainant issued a legal notice to the respondent No. 1 through advocate by RPAD, which the respondent No. 1 refused to accept, and accordingly, as the respondent No. 1 did not pay the said amount, the complainant was constrained to file complaint before the competent Court at Unjha 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 to service of summons, the respondent No. 1 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. In support, the complainant has examined as many as 6 witnesses and produced several documentary evidence, whereas, the respondent No. 1 – accused has also examined one witness. Vide impugned judgment and order dated 16.09.2006, 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. Bharat K. Dave for the appellant and learned advocate Mr. Himanshu Padhya for the respondent No. 1.

3.1 The learned advocate for the appellant – original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the 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 the Promissory Note for Rs.45,000/-, Exh. 30 is not disputed by the respondent - accused. 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, however, the same returned unaccepted. The learned advocate for the appellant further submitted that the learned trial Judge ought to have considered the fact that the respondent – accused was collecting the amount of loan given to different persons by the appellant and the said recovered amount was required to be paid to the appellant and for that, on 15.04.1999, after calculation, the respondent – accused had given the cheque in question. 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.

3.2 The learned advocate for the appellant further submitted that the amount of loan, which was being collected by the respondent – accused was required to be deposited by the accused to the appellant – company for which, the respondent – accused was giving the receipts to them and the said amount was deposited in the bank account at Ambaji. He submitted that, this aspect is suggestive of the fact that the cheque in question, for Rs.2,30,000/- was inclusive of the amount recovered by the respondent – accused, which was further required to be