IMPORTANT POINT
The legal principle established is that the presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the onus is on the accused to raise a probable defense.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order passed by the learned 4th Additional Judicial Magistrate First Class, Himmatnagar dated 29.08.2023 in Criminal Case No.2149 of 2020.

2. The appellant is the original complainant, who filed a complaint before the learned Chief Judicial Magistrate, Himmatnagar alleging that the complainant is doing the agriculture work and private business and knowing the accused through one Rajubhai Amichandbhai Patel, who was the resident of Mahavinagar, Himmatnagar, District: Sabarkantha. On 11.10.2019, the respondent – accused came along with Rajubhai Patel and demanded the amount of Rs.4,50,000/- and the complainant, after arranging the same, lent the said amount to the respondent – accused in cash. At the time of lending the amount, assurance was given that it would be repaid within a period of three months however, on completion of three months, when the demand was raised, the cheque bearing no.082762 of Sabarkantha District Central Cooperative Bank was issued in favour of the complainant. On depositing the same, the same was dishonoured with an endorsement of “insufficient fund”. Therefore, the notice under Section 138 of the Negotiable Instruments Act was issued on 17.02.2020 which was not replied nor complied by the respondent – accused and, therefore, private complaint came to be filed before the competent Court. After recording the verification, the summons came to be issued under Section 204 of the Code of Criminal Procedure and thereafter, the respondent – accused appeared and plea was recorded below Exh.16. The respondent – accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the complainant has examined himself below Exh.19 and produced six documentary evidence and thereafter, filed the closing purshish below Exh.37. On filing the same, further statement under Section 313 of the Code of Criminal Procedure was recorded wherein, the accused pleaded to be innocent and stated that there is no any debt which is incurred against the complainant however, the cheque which was given to Surbhi Finance, was misused by the complainant. In defense, the accused produced the reply to the demand notice below Exh.36. After considering the material placed and the submissions advanced by the learned advocates for the respective parties, the learned trial Court has passed the judgment and order of acquittal which is impugned before this Court.

3. Heard learned advocate Mr.Hannan Qureshi for the appellant.

4. The learned advocate submits that the initial burden upon the complainant to show the legal debt was discharged by the complainant by proving the disputed cheque. The signature on the cheque or issuance of the cheque was not disputed by the respondent – accused. However, the learned trial Court has passed the judgment and order of acquittal only on the ground that the amount of debt in the cheque was not tally with the complainant and believed the case of the defense that the said cheque was issued to Rajubhai, who is a partner of Surbhi Finance. It is submitted that the learned trial Court has wrongly come to the conclusion that the complainant fails to prove his financial capacity. In addition to the income from service, the complainant has also stated that he is having the yearly agricultural income of Rs.5 to 6 lacs however, discarding the same, the judgment and order of acquittal was passed. Therefore, the learned advocate submits that the same deserves to be interfered with and the accused is required to be punished by convicting him for the offence punishable under Section 138 of the Negotiable Instruments Act.

5. Considering the arguments advanced and before entering into the merits of the case, this Court deems it fit to relook the relevant provisions of the Negotiable Instruments Act. Sections 118, 138 and 139 are reproduced hereinbelow:-

“Section 118 – Presumptions as to negotiable instr