The statutory presumption under Section 139 of the Negotiable Instruments Act places the initial burden on the complainant to prove the circumstances under which the cheque was issued and that it was issued in discharge of a legally enforceable debt. The accused has the obligation to adduce evidence to rebut the presumption.

ORDER :

1.0. Heard Mr.Rakshit Patel, learned advocate who has appeared on behalf of Mr.Champavat, learned advocate for the applicant, Mr. Urvesh Prajapati, learned advocate for the respondent no.1 and Ms. Vrunda Shah, learned Additional Public Prosecutor for the respondent State.

2.0. This is an application seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure challenging the impugned judgment and order of acquittal dated 10.02.2022 passed by the learned Chief Judicial Magistrate, Visnagar in Criminal Case No.569 of 2014, whereby, learned trial Court has acquitted the respondent no.1 – original accused from the offence punishable under Section 138 of the Negotiable Instruments Act.

3.0. Before going into the merits of the case, it would be appropriate to consider the case of the complainant. The gist of the complaint as contended by the original complainant is as under:

3.1. The applicant and the respondent no.1 – original accused were friends and respondent no.1 was in need of an amount of Rs.10 lakhs to start a business. It is contended by the complainant that respondent no.1 had approached the original complainant in the month of December of 2013 seeking financial help of an amount of Rs.10 lakhs. It is further contended by the complainant that at the relevant point of time such huge amount was not available with the complainant and had assured the respondent no.1 to arrange such amount after a period of 10 days. It is the case of the complainant that on 1.11.2014 he had withdrawn an amount of Rs.5,95,000/-from his bank account and remaining amount of Rs.4,05,000/- was arranged from friends and the relatives. The complainant has claimed to have advanced an amount of Rs.10 lakhs to the respondent no.1.

3.2. Upon completion of period of two months, the complainant had started demanding the aforesaid amount, the accused had issued cheque dated 9.4.2014 of Dena Gujarat Gramin Bank, Kansa Branch bearing cheque no.178627 of an amount of Rs.10 lakhs which was signed in presence of the complainant. It is further contended that the accused had assured the complainant of realization of the amount on presentation of such cheque. The complainant had relied upon the aforesaid assurance of accused and had presented the said cheque on 9.4.2014. However, the said cheque was dishonored on 10.04.2014 which was handover along with returned memo with endorsement of “insufficient funds” which was received on 10.04.2014.

3.3. In such circumstances, the complainant was constrained to give legal notice dated 15.4.2014, which was sent on the known address of the accused by Registered Post AD. It is further contended that the said notice was duly served on accused on 17.4.2014. It is submitted by the complainant that the vague reply was given by the accused to the aforesaid legal notice. Since the amount had remained unpaid, on expiry of period of 15 days, the complainant had filed complaint on 09.05.2014 under Section 138 of the Negotiable Instruments Act. The said complaint was registered as Criminal Case No.569 of 2014 before the Court of Chief Judicial Magistrate, at Visnagar, Dist.Mehsana.

4. The learned Magistrate had proceeded with verification of the complainant and had issued summons on the accused which were duly served and the accused had appeared before the concerned Court. The plea of the accused was recorded vide Exh.5 wherein the accused had denied the case of the complainant. The trial Court had proceeded for recording of evidence.

5. The trial Court had framed two issues for adjudication, the same are reproduced as under:

(I). Whether the complainant has beyond doubt proved that the complainant has complied with the mandatory provisions envisage under Section 138 and Section 142(1)(b) of the Negotiable Instruments Act while filing the present complaint ?

(II). Whether the complainant has beyond doubt proved that the accused has handed over the cheque against the legally enforceable debt, which being dishonored on the