IMPORTANT POINT
The main legal point established in the judgment is the presumption under Section 118 and Section 139 of the Negotiable Instruments Act, the burden of proof on the accused to rebut the presumption, and the standard of proof required to raise a probable defense.

JUDGMENT :

Order in Criminal Misc. Application

This Court has heard the matter finally at the admission stage. Leave as prayed for is granted. Hence, this application for leave to appeal is allowed.

Order in Criminal Appeal

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order of acquittal dated 03.04.2023 passed by the learned Additional Chief Metropolitan Magistrate, N.I.A. Court No.36, Ahmedabad in Criminal Case No.95307 of 2021 whereby, the respondent – accused is acquitted from the charges under Section 138 of the Negotiable Instruments Act, 1881.

2. It is the case of the complainant that the appellant has given an amount of Rs.10 lacs to the respondent no.2 as a hand loan. Upon request being made by the appellant to return the amount, the cheque bearing No.000062 dated 18.06.2021 of Ahmedabad District Co-operative Bank Ltd. was issued in favour of the appellant for the amount of Rs.10 lacs. The aforesaid cheque is deposited in the account by the appellant on 22.06.2021 however, the said cheque was returned unpaid with an endorsement of “payment stopped by the drawer”.

2.1. The statutory demand notice dated 17.07.2021 was issued to the respondent – accused against which, the reply was given by the respondent – accused on 31.07.2021. Thereafter, the private complaint came to be filed under Section 138 of the Negotiable Instruments Act on 17.08.2021. Vide order dated 17.08.2021, process came to be issued under Section 204 of the Code of Criminal Procedure and the plea of the respondent no.2 was recorded on 22.06.2022 wherein, the accused pleaded not guilty and claimed to be tried. The appellant was cross-examined by the respondent no.2. Thereafter, further statement under Section 313 of the Code of Criminal Procedure was recorded wherein, the defense was raised by the accused no.2 that the old cheque, which was given for the security was misused. After considering the evidence placed on record and the arguments advanced by the learned advocates for the respective parties, the respondent no.2 was acquitted on the ground that the disputed cheque is not issued to discharge the legally enforceable debt and the respondent had succeeded in rebutting the presumption, which is in favour of the complainant. Being aggrieved and dissatisfied with the aforesaid judgment and order of the acquittal, the present appeal is filed.

3. Heard learned advocate Mr.D.P. Kinariwala for the appellant.

4. The learned advocate submits that the judgment and order passed by the learned trial Court, acquitting the respondent – accused by holding that the respondent – accused had successfully rebutted the presumption by cross- examining the complainant, is not in accordance with the evidence placed on record. It is submitted that the presumption is provided under Section 139 of the Code of Criminal Procedure wherein, it is provided that unless the contrary is proved, the presumption is in favour of the complainant with regard to the issuance of the cheque towards discharge of legally enforceable debt. The learned advocate submits that when the cheque contains the signature of the accused and there is no dispute about the signature, which amounts to acknowledging the debt by the respondent – accused and, therefore, even if the debt, as stated by the learned trial Court, is of the year 2015 but, when the acknowledgment was given in the year 2021, the conclusion about time barred debt by the learned trial Court is bad and illegal and, therefore, it is prayed that the judgment and order passed by the learned trial Court is required to be interfered with.

5. The learned advocate further submits that the learned trial Court erred in holding that the appellant is not having the sufficient income to lend the amount to the respondent – accused. The learned advocate submits that when the signature is not disputed and in the demand notice, the financial capacity was not challenged by the respondent – accused, h