IMPORTANT POINT
The burden of proof on the accused to raise a probable defense and the standard of proof for rebutting the presumption under Section 139 of the Negotiable Instruments Act.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ hereinafter) challenging the judgment and order of acquittal passed by the Special Court (Negotiable Instruments Act) Vadodara in Criminal Case No.379 of 2015 (Old Criminal Case No.2512 of 2012) dated 03.06.2023, whereby the respondent-accused was acquitted from the charge under Section 138 of the Negotiable Instruments Act, 1886.

2. The case of the complainant is that the respondent-accused is doing the business as a land broker. The land which is situated at survey No.50/2 having area 01 Hector 66 Are and 93 Square meters was the ownership of the complainant. As the complainant intended to sale the land, the complainant contacted the respondent-accused.

The respondent-accused had conveyed that if power of attorney would be executed in his favour then only he would help to the complainant for selling the land. Therefore, the power of attorney was executed on 03.08.2010 in favour of the respondent-accused. The respondent-accused had informed that as and when the buyer would be available he would call. Thereafter, the complainant was called by the respondent-accused at his office and informed that the buyer is available, on which rate he intended to sale the land. The rate was fixed per square feet of Rs.61. The Banakhat was executed on 27.07.2011 with the purchaser wherein the condition was imposed that the sale deed is to be executed at the rate of Rs.61 per square feet within a period of six months from the date of execution of Banakhat. On the same day, the possession receipt was also executed in the name of the purchaser, which was notarized before the advocate Mr.V.P.Shah. In the said Banakhat as well as in the possession receipt respondent-accused signed as a witness.

2.1. After 10 months of the execution of the Banakhat, the complainant was called at the office of the respondent-accused and informed that with a view to save money by evading the payment of stamp duty, the purchaser convey to execute the sale deed for the amount of Rs.74 Lakh and for the remaining amount the respondent-accused would issue the cheque in favour of the complainant and the said amount is not to be mentioned in the sale deed. As the total consideration would come to Rs.1,09,56,617/, the complainant was paid Rs.74 Lakh and for the remaining amount of Rs.33 Lakh the respondent-accused issued the cheque being the cheque No.047558 of Karnataka Bank, Vidhyutnagar, Vadodara Branch dated 05.07.2012. An assurance was given that on depositing the said cheque, the amount would be credited in the account of the complainant.

2.2. The complainant had deposited the said cheque in the account on 28.09.2012 which was dishonored with an endorsement of “Insufficient Fund” on 04.10.2012. On being contacted, the respondent-accused had given evasive reply, therefore the demand notice came to be issued on 30.10.2012, which was returned with an endorsement of refused. Therefore, private complaint came to be filed before the competent court under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ hereinafter).

2.3. After recording the verification, the summons came to be issued under Section 204 of the Cr.P.C. and on being appeared plea was recorded of the respondent-accused below Exhibit 4 on 12.03.2020. The respondent-accused pleaded innocent and claimed to be tried therefore, to prove the case against the respondent-accused the complainant examined himself at Exhibit 9 and produced the documentary evidence in the nature of power of attorney, which was given in favour of the respondent-accused dated 03.08.2010 below Exhibit 11. The Banakhat which was executed with the purchaser on 27.07.2011 below Exhibit 12, possession receipt dated 27.07.2011 below Exhibit 13, sale deed dated 11.05.2012 below Exhibit 14, original cheque of Rs.33 Lakh below Exhibit 15, return memo dated 04.10.2012 below Exhibit 16, copy of the delivery book of Vijiya Bank below Exh