The presumption of liability under the Negotiable Instruments Act is rebuttable, shifting the burden to the complainant to prove the existence of a legally enforceable debt once the accused provides evidence to the contrary.

ORDER :

1. This is an application filed by the appellant-original complainant praying to grant leave to prefer an appeal against the judgment and order of acquittal passed by learned 5th Additional Chief Judicial Magistrate, Gandhinagar in Criminal Case No. 5992 of 2019 dated 09.06.2023 whereby, the respondent-accused were acquitted for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”).

2. It is the case of the complainant that complainant and the accused are residents of adjoining villages and accused was running a hospital at Rajasthan and on demand being raised, amount of Rs.8,00,000/- was lent to the respondent-accused and for the payment of the aforesaid amount cheque bearing no. 000019 was given, which was dishonoured and thereafter, on following the due procedure, a private complaint came to be filed under the N.I. Act.

2.1. On being summoned, respondent-accused appeared before the learned trial court and his plea came to be recorded below Exh.6 wherein, he pleaded that amount of Rs.8,00,000/- was borrowed from the complainant and thereafter, settlement was arrived between the parties which was executed below Exh.18 and pursuant to the settlement, the respondent-accused had paid the amount directly in the loan account of the complainant and for that he produced the payment slips below Exh.19 and submitted that the security cheque which was given at the time of borrowing the amount was misused and though the amount which was borrowed was repaid, a false case was filed.

2.2. After considering the material placed on record and the arguments advanced by the learned advocate for the respective parties, learned trial court was pleased to acquit the respondent-accused from the charges leveled against him which is the subject matter of challenge before this court.

3. Heard learned advocate Mr.Yogesh Kanade for the applicant. Learned advocate Mr.Kanade submits that the judgment and order of acquittal was passed by the learned trial court mainly on the ground that part payment which was made was not endorsed and therefore, it was held that the complainant fails to establish the legally enforceable debt against the respondent-accused.

4. Learned advocate Mr.Kanade submits that the applicant was not in the knowledge with regard to the payment which was made directly in the loan account of the complainant running in Bank of Baroda and therefore, no question arises for endorsement of part payment under section 56 of the N.I. Act. However, learned trial court, without considering the same, has passed judgment and order of acquittal.

5. Learned advocate Mr.Kanade submits that though demand notice was issued and served, the same was not replied to, neither the signature on the cheque was disputed and without rebutting the presumption which is in favour of the complainant under section 118 and 139 of the N.I.Act, the learned trial court has acquitted the respondent-accused from the charges and therefore, the leave which is prayed, is required to be granted.

6. Considering the submissions advanced by the learned advocate as well as the record and proceedings, it transpires from the record that initially the agreement came to be executed between the complainant and the respondent-accused which was produced by the complainant below Exh.14 on 28.02.2013. It reveals from this document that the amount of Rs.8,00,000/- was lent to the respondent-accused by the complainant and at the time of execution of deed, cheque bearing no. 000019 for the amount of Rs.8,00,000/- was issued by the respondent accused in favour of the complainant.

6.1. During the cross-examination of the complainant, another agreement i.e settlement agreement below Exh.18 was admitted to have been issued on 03.04.2016 wherein, the complainant and the accused agreed to pay the remaining amount of loan i.e.Rs.3,54,000/- and both had shared their liability and the respondent-accused agreed to pay Rs.1,55,000/- direc