The presumption under Section 139 of the Negotiable Instruments Act is rebuttable; the burden shifts to the complainant to prove existence of debt when the accused raises a probable defense challenging the financial capacity of the complainant.

JUDGMENT :

S.V. PINTO, J.

1. This appeal has been filed by the appellant – original complainant under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and the order passed by the learned 3rd Judicial Magistrate First Class, Mehsana (hereinafter referred to as ‘the learned Trial Court), in Criminal Case No. 3367 of 2005 on 18.10.2010, whereby, the learned Trial Court acquitted the respondent no.2 - accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the N.I.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 relevant facts leading to filing of the present appeal are as under:

2.1 The complainant filed a complaint under Section 138 of the N.I.Act against the accused on 30.08.2005 mainly stating that the complainant and the accused both are residing at Mehsana and the complainant was working in Urban School. The accused was doing the business of taking contracts from the Gujarat Electricity Board and had his place of business in GIDC and about 8 months prior to filing of the complaint, the accused came to the house of the complainant and asked for an amount of Rs.2,00,000/- for expansion of his business. The complainant borrowed the amount from his friend circle and advanced an amount of Rs.2,00,000/- to the accused and the accused stated that the amount would be repaid within a period of 6 months. After the period of 6 months was over, the complainant demanded for the amount and 3 months prior to filing of the complaint, the accused gave two cheques i.e. cheque no. 106240 and dated 12.05.2005 and cheque no. 106241 dated 10.06.2005 both of Rs.1,00,000/- each from his account with Nagrik Sahakari Bank, Mehsana Branch. The cheques were deposited by the complainant in his account with Mehsana Urban Cooperative Bank Limited, Mehsana Branch on 15.07.2005, but both the cheques returned unpaid with the endorsement funds insufficient. The demand statutory notice was sent by R.P.A.D. and UPC which were duly served to the accused. The accused gave an evasive reply and did not repay the amount within the stipulated period, and hence, the complainant filed a complaint under Section 138 of the N.I.Act before the Court of the Chief Judicial Magistrate, Mehsana which came to be registered as Criminal Case No. 3367 of 2005.

2.2 The accused was duly served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh.9 and the evidence of the complainant was taken on record. The complainant was examined on oath at Exh.11 and one witness Dashrathbhai Haridas Patel was examined at Exh.32. The complainant produced 09 documentary evidences in support of his case.

2.3 After the closing pursis was filed by the complainant at Exh.40, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the facts stated in the examination-in- chief and in the complaint are false and a false complaint has been filed by the complainant. The accused stepped into the witness box and deposed on oath and examined 01 witness and produced 04 documentary evidences in support of his defence. 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 Act.

3. Being aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned Trial Court, the appellant has preferred t