The presumption of consideration in negotiable instruments is rebuttable by the accused, requiring only a probable defense rather than testimony, confirmed by expert handwriting analysis.

JUDGMENT :

M. K. Thakker, J

JUDGMENT :

1. This matter was considered and disposed of finally at the admission stage.

2. This appeal is filed challenging the judgment and order passed in Criminal Case No.54778 of 2016 by the learned Special Judge, Special Negotiable Instruments Act Court, Surat dated 8.4.2023 whereby respondent-accused was acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act.

3. It is the case of the complainant that complainant, who is Power of Attorney holder, is having the knowledge with regard to the disputed transaction of the private complaint which is filed before the Competent Court being Criminal Case No.54778 of 2016. It is alleged in the complaint that complainant and accused were belonging to the same village and are the distant relatives. As the respondent-accused was in need of the money, in the year March, 2015, demand was raised with the complainant to lend the money. Complainant had given two cheques bearing Cheque No.058258 and 058259 dated 10th March, 2015 of Rs.10 lacs each of Associate Co.Op. Bank Ltd, Ring Road Branch, Surat. The assurance was given by the respondent-accused that the amount would be repaid within a period of 1 year. On completion of 1 year, money was demanded back where the accused had conveyed that he is in financial difficulty but within a 2 to 3 months, the amount would be repaid. Ultimately, cheque dated 14.6.2016 bearing Cheque No.434251 and 434252 of Rs.10 lacs each was drawn in the name of the complainant of Surat Mercantile Co.Op. Bank Ltd., Surat where respondent-accused has signed as authorized signatory of Shiv Enterprises. At that point of time assurance was given that on depositing with the Bank, the same would be honored and the amount would be credited in his account. The cheque was deposited and was returned on 15.6.2016 with an endorsement that “fund insufficient” for which the ‘Notice’ was issued on 11.07.2016 which returned with an endorsement that “not known”. Thereafter, aforesaid private complaint came to be filed. On being recorded the verification by the learned Court, the summons came to be issued under Section 204 of the Code of Criminal Procedure and on appearance of the accused, plea was recorded below Exh.7 wherein respondent-accused had denied the allegation and claimed to be tried. To prove the case, the complainant had examined himself below Exh.4 and witness, Gaurav Maheshbhai Patel, below Exh.30. Documentary evidence in the nature of Power of Attorney was produced below Exh.8. Registration of the firm below Exh.9. Xerox copies of the cheque by which the amount was lent below Exh.10 and 11. Copy of passbook Exh.12. Disputed cheques Exh.13 and Exh.15. Return Memo Exh.14 and 16. Demand Notice Exh.17. Registered AD Receipt Exh.18. Return cover Exh.19. Income-tax return of the year 2014-15 and 2015-16 below Exh.20 and 21. On filing closing pursis, further statement under Section 313 of the Code of Criminal Procedure was recorded wherein the accused had pleaded that there was a partnership firm where her husband and uncle in-law were partner, thereafter, dispute occurred between the partners, the cheques which were lying in the office were misused by the uncle in-law by forging the signature and given to the complainant. In fact, accused never met to the complainant nor made any transaction and pleaded to be innocent. However, cheques in the name of Shiv Enterprises where she is Proprietor were misused and she further in order to prove her defence, in addition to cross examination, she examined the witness, namely, Dharmesh Ramchandra