The presumption of consideration under the Negotiable Instruments Act is rebuttable, placing the burden on the accused to provide evidence against the claim of debt.

ORDER :

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 23266 of 2023

1. This application is filed seeking leave to prefer an appeal against the against the judgment and order of acquittal passed below Exh.20 by the learned 5th Additional Chief Judicial Magistrate, Bharuch in Criminal Case No.15101 of 2017.

2. It is the case of the complainant that the complainant and accused were known to each other and accused had approached the complainant with a request to lend an amount of Rs.1,00,000/- in the month of January, 2021. The complainant had lent the amount from his own personal savings and at that time an assurance was given that the said amount would be repaid within a period of 6 months and on repeated demands the cheque bearing No.300014 dated 09-11-2021 of Rs.1,00,000/- was issued in the favour of the complainant.

2.1. On depositing the said cheque with the Bank, the same was dishonored with an endorsement of ‘funds insufficient’ and therefore, after following the due procedure under the Negotiable Instruments Act(hereinafter referred to as the NI Act), a private complaint came to be filed for the offence punishable under section 138 of the NI Act. On being summoned the respondent-accused appeared and his plea was recorded, wherein he pleaded not guilty and claimed to be tried.

3. In order to prove the guilt of the accused, the complainant produced the documentary evidence which is in the nature of cheque return memo, notice etc. and he himself was examined below Exh.4. On filing the closing pursis the statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) was recorded wherein the accused had pleaded that no such cheque was issued in favour of the complainant, neither he knows the complainant. The complainant has obtained the cheque from his brother namely Manojbhai and has filed the false case by misusing the said cheque.

4. Learned trial court, after considering the evidence placed on record and the arguments advanced by the learned advocates for the respective parties has passed the judgment and order of acquittal which is the subject matter of the challenge before this Court.

5. Heard the learned advocate Mr.Anurag Agarwal for the applicant-original complainant.

5.1. Learned advocate Mr.Agarwal submits that the judgment and order of the learned trial court was passed only on the basis that complainant had denied to examine his brother namely Mr.Manojbhai and did not show readiness to produce his bank statement for the year January, 2021.

5.2. Learned advocate Mr.Agarwal submits that, it is on the respondent-accused to rebut the presumption which is in favour of the complainant under section 118 and 139 of the NI Act and it is the duty of the respondent-accused to prove his defence through independent evidence or by creating circumstances. Learned advocate submits that if the complainant had not shown readiness to examine the brother Mr.Manojbhai, then the said witness could have examined by the respondent-accused to prove his defence, however instead of adopting that method learned trial court has drawn the adverse inference against the complainant and had come to the conclusion that complainant fails to establish the legally enforceable debt against the respondent- accused.

6. Learned advocate Mr.Agarwal has relied on the decision rendered by the Apex Court in the case of “Uttam Ram versus Devinder Singh Hudan and others reported in 2019 10SCC 287” and submitted that, dishonour of the cheque carries a statutory presumption of consideration and after establishing that holder of the cheque has received the cheque from the respondent- accused the burden would be shifted on the respondent- accused to rebut the presumption that the cheque was not issued for any debt or other liability. Learned advocate submits that without discharging that burden, the learned trial court has acquitted the respondent- accused and therefore the leave as prayed for is required to be granted a