IMPORTANT POINT
The presumption of cheque issuance for debt under Section 139 can be rebutted, requiring the complainant to prove the existence of a legal enforceable debt for a successful prosecution under Section 138.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present application is filed by the applicant-original complainant under Section 378(4) of the Criminal Procedure Code, 1973 for leave to appeal against the impugned judgment and order dated 25.05.2023 passed by the learned Special Judge, Negotiable Instruments Act Court, Vadodara (hereinafter be referred to as “the trial Court”) in Criminal Case No. 41828 of 2011 whereby the learned Special Judge has acquitted the respondents-accused from the charges levelled against them.

2. Brief facts of the present case are that the applicant is a partnership firm and doing the business of manufacturing battery chargers, static excitation/AVR panels, LT panels and PLC/SCADA panels. It is alleged that respondent No. 2 is a proprietary firm and respondent No. 3 is proprietor of respondent No. 2 and respondent accused had awarded work for renovation and automation for 66 nos. of Koshi Barrage Gates at Patna, Bihar and the said work was sub-contracted by accused to applicant-firm. It is alleged that for the part payment in relation of the work under contract, accused issued a cheque of Rs.30,00,000/- in favour of the applicant and the said cheque came to be deposited by the applicant in the bank, which was returned with an endorsement “payment stopped by drawer. Thereafter, the applicant issued notice to respondent-accused under Section 138 of the Negotiable Instruments Act (hereinafter be referred to as “the N.I. Act”) and in response to the said notice, the respondent gave evasive reply and the applicant filed the criminal complaint before the Special Court (N.I. Act), which came to be rejected and acquitted the accused.

3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the applicant has preferred the appeal.

4. Heard Mr. Panthil Majmudar, learned counsel appearing on behalf of the applicant and Mr. D.C. Sejpal, learned counsel appearing for the respondents-accused at length.

5. Mr. Majmudar, learned counsel has submitted the same facts which are narrated in the memo of application and has submitted that the trial Court has committed manifest error while passing the impugned judgment and order of acquittal mainly on the ground that the complainant has failed to prove legal enforceable debt and the disputed cheque in question was given by the accused towards final settlement as security and basic ingredients of Section 138 of the N.I. Act. He has submitted that in fact, the complainant has prima facie proved that the cheque was issued by the accused for his legal enforceable debt and signature was also proved and, therefore, under Sections 138 and 139 of the N.I. Act, the presumption against the accused that the accused has issued the said cheque towards legal enforceable debt was proved by the complainant, however, the said fact has not been properly appreciated and considered by the trial Court. He has submitted that on perusal of the evidence of the authorized officer of the complainant, it appears that the complainant has proved the case against the accused by leading cogent and convincing evidence and by producing the relevant documentary evidence before the trial Court. However, the trial Court has overlooked the said fact and not considered all the relevant material while recording the findings and thus the accused to be held guilty for the offence under Section 138 of the N.I. Act. He has submitted that the complainant has supplied the material which requires for execution of the contract, even the accused was unable to complete the tender process and, therefore, the applicant has given advance payment in favour of the accused while opening new account in the bank and to complete the tender contract issued by the State of Bihar work for renovation and automation of 66 nos of Koshi Barrage Gates at Patna, Bihar, for which they have entered in Joint Venture Consortium Agreement. He has submitted that the accused has issued work order and in response thereto, the comp