The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the burden lies on the accused to raise a probable defence, which was successfully established in this case.

ORDER :

S.V. PINTO, J.

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 25.10.2024 passed by the learned Additional Chief Judicial Magistrate, Gandhinagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 01 of 2021, whereby the respondent No. 1 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I 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.15,00,000/- for social reasons from the applicant and the accused had issued cheque No.000008 for the amount of Rs.15,00,000/- dated 05.08.2020 from his account with State Bank of Baroda, Khedbrahma Branch, Sabarkantha. The applicant deposited the cheque in his account and the cheque was dishonored and the reason mentioned in the return memo dated 10.08.2020 was “Funds Insufficient”. The applicant informed the accused regarding the dishonor of the cheque and the accused instructed the appicant to deposit the cheque after two months. The applicant deposited the cheque in his account on 03.11.2020, but the cheque was dishonored and the reason mentioned in the return memo was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 24.11.2020 by R.P.A.D which was duly served on 25.11.2020 and an evasive reply was given by the accused and no payment was made and hence the applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Gandhinagar under Section 138 of the N I Act, 1881 which was registered as Criminal Case no. 01 of 2021.

2.2. The accused was served with the summons and the accused appeared before the learned Trial Court and after his plea was recorded the evidence of the applicant was taken on record. The applicant and one witness were examined on oath and 06 documentary evidences were produced in support of his case and after the closing pursis at exhibit No. 25 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused stepped into the witness box and one witness were examined on oath by the accused in his defence and 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 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. Sachin D. Panchal appearing for the applicant and learned APP Mr. Utkarsh Sharma for the respondent – State.

5. Learned Advocate Mr. Sachin D. Panchal 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 o