The presumption under Section 139 of the NI Act establishes that a cheque is issued for a legally enforceable debt, placing the burden on the accused to rebut this presumption with a probable defense.

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 03.05.2023 passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act Court No. 34, Ahmedabad in Criminal Case No. 3201247 of 2012, whereby the original accused – respondent no. 1 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”).

1.1 The respondent no. 1 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 filed a complaint against the accused under Section 138 of the Act, as the accused had taken a loan of Rs. 10,00,000/- from the applicant on 05.09.1997 for his personal need and accused issued the cheque no. 002597 of amount of Rs. 10,24,726/- dated 01.05.2003 from his account maintained as proprietor of Dattkrupa Hardware And Sanatory Mart with Vadodara Gramin Bank, Vaghodiya Branch, Vadodara. The applicant deposited the cheque on 17.06.2003 in his account with The Ahmedabad District Co. Op. Bank, Ashram Road Branch, Ahmedabad and the same was dishonored and the reason mentioned in the return memo was “Stopped Payment By Drawer”. The applicant sent the statutory demand notice to the accused on 12.07.2003 against which evasive reply was given and no payment was made. The applicant filed the criminal complaint before the Chief Metropolitan Magistrate, Ahmedabad under Section 138 of the NI Act, 1881 which was registered as Criminal Case No. 3201247 of 2012.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded and the evidence of the applicant was taken on record. The applicant was 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. 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. Bharat K. Dave appearing for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State and Mr. J.A. Adeshra for respondent no.1.

5. Learned Advocate Mr. Bharat K. Dave 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 NI 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 hence, the judgement and order of acquittal is bad in