The statutory presumption under section 139 of the N.I. Act is rebuttable, and the standard of proof for rebuttal is guided by a preponderance of probabilities. The trial court's approach in dealing with the evidence must be legal and the conclusions arrived at must be tenable.

JUDGMENT :

Heard Mr. S. Chakraborty, learned counsel for the appellant, and also heard Mr. P.K. Munir, learned counsel, for the respondent.

2. In this appeal, under section 378 Cr.P.C., the appellant – Shri Amitabh Saikia, has put to challenge the judgment and order, dated 05.08.2016, passed by the learned Chief Judicial Magistrate, Nagaon, in C.R. Case No.1467/09, under Section 138 of the N.I. It is to be noted here that vide impugned judgment and order, the learned court below has acquitted the respondent, of the offence under section 138 N.I. Act.

3. The background facts, leading to filing of the present appeal, under section 378 Cr.P.C. is adumbrated herein below:-

“The appellant and the respondent herein had a good business relationship. Then on 10.07.2008, the respondent had requested the appellant to advance him a sum of Rs.10,00,000/- with a promise to return the same within three months. Accordingly, the appellant had given a sum of Rs.10,00,000/- to the appellant on 14.07.2008. After three months, i.e. on 24.10.2008, the appellant had demanded the respondent to return the sum. The respondent then issued a cheque, bearing No. 093619, dated 24.10.2008, payable at UCO Bank, Jorhat Branch. The appellant then presented the cheque in his account at Central Bank of India, Nagaon Branch on 24.10.2008. But, the said cheque returned dishonoured on 07.11.2008, due to insufficiency of fund in the account of the respondent. Then on being instructed by the respondent, the appellant had again presented the cheque on 22.12.2008. But, this time also the cheque returned dishonoured on 01.01.2009. Then, again on instruction of the respondent, the appellant had presented the cheque on 09.02.2009, and again the cheque returned dishonoured due to insufficiency of fund; vide cheque returning Memo, dated 14.02.2009. Thereafter, the appellant had issued legal notice through his engaged counsel to the respondent to pay the cheque amount within 15 days of the receipt of Notice. The respondent had received the Notice on 27.03.2009, but failed to make payment of the sum. Thereafter, the appellant had instituted a complaint, being C.R. Case No. 1467/2009, under section 138 of the N.I. Act. The respondent had appeared and contested the case. Thereafter, hearing both the parties, the learned court below had dismissed the complaint and acquitted the respondent, vide impugned judgment and order dated 05.08.2016.”

4. Being highly aggrieved and dissatisfied with the aforesaid judgment and order, the appellant has preferred this appeal, and contended to allow the same on the following grounds :-

[i] That, the learned court below has failed to appreciate the mandate of section 139 of the N.I. Act, which provides for drawing of presumption in favour of the holder of the cheque and that the same was issued in discharge of a legally enforceable debt;

[ii] That, the case of the respondent is that the cheque in question was one of the cheque, amongst the 10 blank cheques, handed over by him to the appellant while borrowing a sum of Rs.4,10,000/-; on 16.02.2007, but the same is not acceptable in as much as per Exhibit-12 and evidence of P.W.2, the Manager of UCO Bank, Jorhat Branch, the cheque book containing cheque leaf(s) No. 093601 to 093650 was issued to the respondent on 11.08.2007, and that being so, the question of handing over of cheque to the appellant by the respondent as security in respect of the loan taken on 16.02.2007, is not at all believable.

[iii] That, the learned court below has failed to appreciate that the plea of the respondent is not at all probable and the same failed to withstand the test of preponderance of probability;

[iv] That, the respondent also had admitted in cross-examination that the cheque book containing leaf(s) No.093601 to 093650 was issued to the him on 11.08.2007, and as such the plea of handing over of the cheque in question as security cheque for a loan taken by him on 16.02.2007 is an absurd proposition;

[v] That, the learned