IMPORTANT POINT
The main legal point established in the judgment is the rebuttable nature of statutory presumptions under the Negotiable Instruments Act, particularly in cases of dishonoured cheques, and the burden of proof on the parties involved.

JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed under section 378 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) challenging the judgment and order of acquittal passed in Criminal Case No. 14868 of 2019 by the Learned 20th Additional Senior Civil and Additional Chief Judicial Magistrate, Surat dated 26-09-2022.

2. The case of the complainant is that, complainant is running a finance business in the name and style of Shriram Finance Company Limited and lending money by hypothecating the vehicle and executing the deeds. The accused had obtained a loan facility from the complainant’s company on the vehicle bearing registration No. GJ-05-AU-7515 and the hypothecation cum loan agreement was executed. As the accused committed default in payment of installment regularly, the complainant had informed the respondent-accused, and to discharge the liability of making the repayment of the loan amount, the cheque bearing No. 019221 of ICICI bank Kamrej branch, Surat was issued for an amount of Rs. 4,20,000/- towards part payment. On depositing the said cheque, it was returned with an endorsement of “Funds Insufficient” therefore the demand notice was issued to the respondent-accused on 28-02-2019 which was served to the respondent-accused on 04-03-2019. However, the said demand notice was neither replied nor complied to, therefore a private complaint came to be filed for the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as NI Act).

3. After recording the verification, the process came to be issued under section 204 of the Cr.P.C. upon the accused, and accused appeared and his plea was recorded below Exh.7 on 05-12-2019. Accused pleaded not guilty and claimed to be tried. To prove the case, the complainant along-with the complaint has examined himself below Exh.21 and produced documentary evidences in the nature of Power of Attorney below Exh.25, Copy of Accounts Statement Ex. 10, disputed cheques, notice memo respectively. On filing the closing pursis below Exh.26, further statement under section 313 of the Cr.P.C. was recorded wherein the accused pleaded that, though loan amount was repaid fully, a false case was filed to recover excessive rate of interest and penalty by misusing the security cheque which was lying with the finance company. In addition of above defence, the complainant was cross examined by the accused, that learned Trial Court after considering the cross examination as well as the documents which was placed on record including the arguments advanced by the Learned Advocates for the respective parties had passed the judgment and order of acquittal which is impugned before this Court.

4. Heard Learned Advocate Mr. Manish J. Patel alongwith Learned Advocate Ms. Namrata Mulchandani and as this case was decided at the admission stage, no notice was issued to the respondent No. 2.

5. Learned Advocate Mr. Patel submits that, though presumption under section 118 and 139 of the NI Act provided under the Act was not rebutted by the respondent-accused, learned Trial Court has passed judgment and order of acquittal.

6. Learned Advocate Mr. Patel submits that respondent-accused had admitted the loan facility which was availed and the signature on the cheque, though prima facie proved by the Learned Advocate of the complainant and without rebutting the evidence which was produced in support of the complaint, judgment and order of the acquittal was passed.

7. Learned Advocate submits that learned Trial Court has failed in not considering the statement of accounts which was produced below Exh.10 and held that, complainant has failed in establishing the legally enforceable debt against respondent-accused without considering the law laid down by the Apex Court that catena of decision that the primary duty is on the respondent-accused to rebut the evidence and to establish the fact with regard to the issuance of the cheque, without discharging the duty by the respondent-acc