The presumption under Section 139 of the Negotiable Instruments Act is mandatory, placing the burden on the accused to rebut the existence of a legally enforceable debt.

ORDER :

1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 27.04.2023 passed by the learned Chief Judicial Magistrate, Rajkot in Criminal Case No. 22402 of 2020, whereby the original accused – respondent No.2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act”). The respondent No.2 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under :

2.1 The applicant had filed a complaint against the accused under Section 138 of the N.I.Act, as they both were having good relations, and the accused had taken a loan of Rs.15,00,000/- for development of his business, giving assurance and trust to return the amount within one year, in the month of July 2017. When the time limit was completed, the applicant demanded the amount and the accused sought for further time to repay the same and the accused issued Cheque No. 436647, dated 05.10.2020 for Rs.15.00,000/- of Rajkot Nagarik Sahakari Bank Ltd., Kalavad Road Branch, Rajkot, assuring that the cheque would be cleared, when deposited. The cheque was deposited by the applicant in his account with State Bank of India, Jagnath Plot Branch, Rajkot, but, the cheque returned on 06.10.2020 with the endorsement "Funds Insufficient". The applicant gave the statutory legal notice through his advocate on 27/10/2020, which was duly served to the accused, and the accused refused to repay the amount and gave a false and fabricated answer to the notice. As the accused had committed the offence under Section 138 of the Act, the complaint had been filed before learned Chief Judicial Magistrate, Rajkot.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit-09 and the evidence of the applicant was taken on record. The applicant was examined on oath and 06 documentary evidences were produced in support of his case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, the accused stated that there were no dues but the cheque was misused by the applicant. The arguments of the advocates for both the parties were heard and by impugned judgment and order, the learned Trial Court acquitted the accused from theoffence under Section 138 of the N.I.Act.

3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.

4. Heard learned advocate Mr. H. J. Karathiya appearing for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State.

5. Learned Advocate Mr. H.J. Karathiya for the applicant has submitted that there is a statutory presumption under Section 139 of the Negotiable Instrument Act which is not rebutted by the respondent No. 2, and it is established by the applicant that the cheque in question was issued for the legally enforceable debt. The respondent No. 2 has not put forward any explanation with regard to the issuance of the cheque and he has not disputed his signature as well as handwriting on the cheque and the offence under Section 138 of the Negotiable Instruments Act is made out. The presumption under Section 139 is mandatory and not a discretionary presumption and it raises an obligation on the Court to raise a statutory mandatory presumption in favour of the complainant tha