The complainant must prove the grant of the loan and the legally enforceable debt or liability under Section 138 of the NI Act. The presumption under Section 139 is rebuttable, and the onus is on the accused to raise a probable defence.

JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

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 30.07.2011, passed in Criminal Case No. 2513 of 2008 by the learned 7th Additional Chief Judicial Magistrate, Junagadh, recording the acquittal.

2. Facts, in brief, are that appellant-original complainant-Kalubhai Ranimgbhai Vank lodged a complaint before the competent Court that the complainant, out of friendship, lent Rs. 1 lakh to the respondent No. 2 in his hour of need, so as to help him, against which, the respondent No. 2 issued a cheque bearing No. 862883 dated 09.06.2008, drawn on the State Bank of Saurashtra, Bhesan Branch for Rs. 1 lakh and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 09.06.2008 the complainant deposited the cheque in the Bank of Baroda, Makhiyala Branch, the same was returned by the bank with an endorsement “Fund Insufficient.” Accordingly, when despite several requests, the respondent No. 2 did not repay the said amount, the complainant issued a legal notice dated 08.07.2008 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”) which was served upon the respondent No. 2 on 09.07.2008. The respondent No. 2 neither replied the said notice not paid the cheque amount and hence, the complainant constrained to file the complaint under Section 138 of the NI Act before the competent Court at Junagadh.

2.1 Upon such complaint being filed and subsequent service of summons upon the respondent No. 2, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded and several oral and the documentary evidence were produced. Vide impugned judgment and order, the learned Magistrate acquitted the accused person. Being aggrieved by the same, the appellant-original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. Hriday Buch for the appellant-original complainant, learned advocate Mr. Zalak Pipalia for the respondent No. 2 and learned APP Ms. Jirga Jhaveri, APP for the respondent No. 1-State.

3.1 The learned advocate for the appellant-original complainant has mainly contended that the learned Magistrate ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented before the bank with an endorsement “Fund Insufficient.” Furthermore, in his submission, the learned Magistrate ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant. Further, it is submitted that the learned Magistrate ought to have appreciated the facts that the cheque in question was deposited in the bank in time; legal notice upon the respondent No. 2 was also issued within the stipulated time; the cheque was returned unpaid with an endorsement “Fund Insufficient” and that, the respondent No. 2 had not arranged to repay the money within the notice period. The learned advocate for the appellant submitted such a finding is erroneous and against the facts and evidence on record.

3.2 The learned advocate for the appellant further submitted that the learned Magistrate 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 under Sections 118(a) and 139 of the NI Act.

3.3 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, the learned Magistrate 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,