The presumption under Section 139 of the NI Act is rebuttable, and the burden of proof lies on the accused to establish a probable defense against 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 28.08.2024 passed by the learned 11^th Additional Judicial Magistrate First Class, Surat in Criminal Case No. 54353 of 2022, 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”).

1.1 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 filed a complaint against the accused under Section 138 of the Act, as the accused had taken a friendly loan of Rs. 10,00,000/- since 2020 on different occasion for his personal need. All these transactions were entered into a notarized agreement in the form of promissory note on 04.06.2022. The accused issued three cheques of The Zoroastrian Co. Operative Bank Limited having account no. 104200100005606 by filing details and signature on it. The applicant deposited cheque No. 061956 for Rs. 3,00,000/- on 13.07.2022 in his account with State Bank of India, Adajan Branch, Surat and the same was dishonored with return memo at exhibit 13 and as per instructions of the accused, the applicant deposited the same cheque again which was dishonored and the reason mentioned in the return memo at exhibit 14 dated 21.07.2022 was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused against which an evasive reply was given and no payment was made though it was served. The applicant filed the criminal complaint before the Court of the 11^th Additional Judicial Magistrate First Class, Surat under Section 138 of the NI Act, 1881 which was registered as Criminal Case no. 54353 of 2022.

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 08 documentary evidences were produced in support of his case and after the closing pursis at exhibit 26 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused denied the averments of the evidences against him and stated that the applicant has misused the cheque by falsely writing in it later on which was in the possession of complainant and created forged documents and no amount is to be paid by accused to applicant and accused has not given cheque for any debt or liability and a false complaint had been filed. After the arguments of the learned advocates for both the parties were heard, 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 Ms. Akshitaba Solanki appearing for the applicant and learned APP Mr. Bhargav Pandya for t