The presumption of a legally enforceable debt under Section 139 of the NI Act is rebuttable, and the burden lies on the accused to raise a probable defence.

ORDER :

1. The present application is filed by the applicant – original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the judgment and order dated 18.12.2024 passed by the learned Judicial Magistrate First Class Court No.3, Surat in Criminal Case No. 18838 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 NI 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 is the holder of a Money Lenders License, and the accused had borrowed an amount of Rs.15,00,000/- from the complainant and had executed two promissory notes on 18.03.2020 and 11.06.2020 and had given cheque No. 000018 of his account with Bank of India for Rs.15,00,000/-. The cheque was deposited by the applicant in his bank and the same was returned on 29.06.2020 with the endorsement “Funds Insufficient”. The applicant sent the demand notice which was served to the accused on 29.07.2020 but the accused did not send any reply and did not return the amount and hence the applicant filed the complaint before the Court of the Chief Judicial Magistrate, Surat under Section 138 of the N I Act.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 07 and the evidence of the applicant was taken on record. The applicant at Exhibit 04 and Ankitaben Milanbhai at Exhibit 22 were examined on oath and 12 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 the facts in examination in chief and in the complaint are false and a false complaint has been filed. The accused stepped into the witness box and was examined on oath at Exh.33 and produced three documentary evidences in support of his defence. After the evidence of the accused was closed the arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the NI 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. Nandish H. Thackar appearing for the applicant and learned APP Mr. Bhargav Pandya for the respondent – State.

5. Learned Advocate Mr Nandish H Thakkar for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the N I Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in proper perspective. The oral contract is not negated by the accused and the fact of the amount paid by the applicant to the accused is also not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and the financial capacity of the applicant was never put to c