The issuance of a cheque carries a presumption of consideration, which is rebuttable by the accused. Failure to prove the non-existence of a debt results in liability under Section 138 of the NI Act.

JUDGMENT :

Heard Mr. K. Tama, learned counsel for the appellant. Also heard Mr. J. Jini, learned Amicus Curiae for the sole respondent.

2. This Criminal appeal under Section 378 of Code of Criminal Procedure, 1973, is directed against the impugned judgment & order dated 07.08.2019, passed by the learned Chief Judicial Magistrate, Yupia, in CR Case No. 38/2016, under Section 138 of the Negotiable Instrument Act, 1881, whereby, the respondent has been acquitted.

3. The case projected in brief is that the appellant had given a loan amount of Rs. 1,40,000/- (Rupees Four Lakhs Forty Thousand) only to the respondent with agreed terms and conditions to return the same with interest at the rate of 10% per month. The said amount was given by one Smti. Kungyam Yangfo, to the respondent on behalf of the appellant. The respondent on 11.05.2016, has issued a cheque bearing No. 756093 to the appellant for an amount of Rs. 5,00,000/- (Rupees Five Lakhs) only drawn on State Bank of India, Seppa Branch, East Kameng District, Arunachal Pradesh to discharge the debt liability owed to the appellant being the loan amount with interest at the rate of 4% per month. Accordingly, the appellant presented the said cheque in the Bank at SBI, Ganga Branch, Itanagar for encashment. However, on 12.05.2016 and 13.05.2016, it was informed to the appellant by the drawee bank that the aforesaid cheque has been dishonoured on the ground of insufficient fund and issued return slips. Thereafter, the appellant served a legal notice dated 16.05.2016, to the respondent, thereby, requested to make the payment within a period of 15(fifteen) days from the date of receipt of the said legal notice. However, despite receipt of the said legal notice, the respondent did not make the payment of dishonoured cheque amount to the appellant nor any reply to the legal notice.

4. The appellant, thereafter, filed a complaint case before the learned Chief Judicial Magistrate, Yupia, under Section 138 of Negotiable Instrument Act, 1881 (in short NI Act, 1881) read with Section 420 of IPC. Accordingly, the learned Chief Judicial Magistrate took cognizance under Section 138 of the NI Act, 1881, which was registered as C.R. Case No. 38/2016. Thereafter, the Court issued process against the respondent.

5. In order to prove the case, the appellant has examined 5 (five) witnesses including herself. The defence has not adduced any evidence other than the statement under Section 313 of Cr.P.C, 1973.

6. After consideration of the materials on record, the following points for determination have been framed, which are as follows:

i) Whether the accused issued the cheque bearing No. 756093 dated 11.05.2016, in favour of the complainant for the discharge of legally enforceable debt or liability?

ii) Whether the cheque was dishonoured for insufficient fund in the account of the accused?

iii) Whether the accused received the demand notice issued by the complainant regarding the dishonour of the cheque?

iv) Whether the accused has failed to repay the cheque amount to the complainant within stipulated period?

v) Whether the accused has committed the offence under 138 of Negotiable Instrument, Act, 1881?

7. The learned Chief Judicial Magistrate, determined the point No. 1 and held that the cheque No. 756093 dated 11.05.2016, was not issued by the accused in discharge of his legally enforceable debt or liability. The point Nos. 2, 3 & 4, have been decided in affirmative and the point No. 5, was determined in negative by holding that the prosecution has failed to prove the existence of legally enforceable debt or liability of the accused towards the complainant. Accordingly, the learned Chief Judicial Magistrate, vide the impugned judgment and order dated 07.08.2019, has acquitted the respondent from the charge of offence punishable under Section 138 of the NIAct, 1881.

8. Mr. K. Tama, learned counsel for the appellant, submits that the learned CJM, Yupia has erred in law in holding that the complainant failed to pr