The court affirmed that the presumption under Section 139 of the NI Act can be rebutted, and the burden remains on the complainant to substantiate the existence of a legally enforceable debt, failing which the acquittal is justified.

JUDGMENT :

S.V. PINTO, J.

1. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) an appeal against the judgment and order dated 25.02.2010 passed by the learned Judicial Magistrate First Class, Sabarkantha at Himmatnagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 3629 of 2006, 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 NI Act”).

1.1 The parties are hereinafter referred to as “the complainant” and “the accused” as they 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 appeal as well as the impugned judgment and order and paper book filed by the complainant are as under:

2.1. The complainant filed a complaint against the accused under Section 138 of the Act, as the accused had purchased goods of Rs. 6,00,000/- from the complainant and the accused issued cheque No.199835 for the amount of Rs.6,00,000/- dated 15.06.2006 from his account with Allahabad Bank, SSI Finance Branch-3, Gandhinagar. The complainant deposited the cheque on 16.10.2006 in his account with UTI Bank Ltd, Himmatnagar, but the cheque was dishonored and the reason mentioned in the return memo dated 26.10.2006 was “Funds Insufficient”. The complainant sent the statutory demand notice to the accused on 01.11.2006 by U.P.C. and R.P.A.D. which was served on 08.11.2006, but no payment was made by the accused. The complainant filed a criminal complaint before the Court of the Chief Judicial Magistrate, Sabarkantha at Himmatnagar under Section 138 of the N I Act, 1881 which was registered as Criminal Case no. 3629 of 2006.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh.29 and the evidence of the complainant was taken on record. The complainant and one witness 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. The accused refused to stepped into the witness box and 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 appellant has preferred the present 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. Monark Pandya for learned advocate Mr. Hriday Buch appearing for the appellant and learned APP Ms. Jirga Jhaveri for the respondent – State.

5. Learned Advocate Mr. Monark Pandya for the appellant submits that the learned Trial Court has not appreciated that the complainant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The complainant has proved that the cheque was written by the accused and it was dishonoured and as the complainant 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 complainant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in proper perspective. The fact of the goods given by the complainant 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 law and the appeal must be allowed.

6. Learned