In cheque dishonor cases, the presumption under Section 139 of the NI Act is rebuttable; the accused can establish a defense based on preponderance of probabilities.

ORDER :

S.V. PINTO, J.

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 17.02.2025 passed by the learned Additional Judicial Magistrate, Gandhinagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1251 of 2024, whereby the respondent No. 2 - 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. 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 loan of Rs.15,00,000/- in January 2023 and Rs.12,00,000/- in April 2023 from the applicant and had issued cheque No.000156 dated 06.01.2024 for the amount of Rs.30,00,000/- from his account with Bank of Baroda, Unava, District Gandhinagar Branch. The applicant deposited the cheque on 06.01.2024 in his account with Bank of Baroda, Vidhansabha branch and the cheque was dishonored and the reason mentioned in the return memo dated 09.01.2024 was “Drawers Signature differs from specimen record with us and Refer to drawer”. The applicant sent the demand statutory notice to the accused on 06.02.2024 which was duly served on 09.02.2024 and no reply was given and no payment was made and hence the applicant filed the criminal complaint before the Court of the Judicial Magistrate, Gandhinagar under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 1251 of 2024.

2.2. The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at Exh.06 and the evidence of the applicant was taken on record. The applicant was examined on oath and 10 documentary evidences were produced in support of his case and after the closing pursis at Exh.54 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused denied all allegations levelled against him and stated that he has not borrowed any amount nor issued any cheque in favor of the applicant and a false complaint has been filed. The accused refused to step into the witness box. 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 Ms.Vishwa M. Shah appearing for the applicant, learned APP Ms. Jirga Jhaveri for the respondent – State.

5. Learned Advocate Ms.Vishwa M. Shah 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 d