ORDER :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Leave to Appeal under Section 378 (4) Cr.P.C. has been preferred claiming the following reliefs:

“1. This leave to appeal may kindly be granted and the memo of leave may kindly be treated as memo of appeal.

2. The Judgment dated 28.11.2018 passed by the learned Special Metropolitan Magistrate, NI Act Cases, Pali, in Crl Original Case No.1525/2017 may kindly be set aside and the respondent be convicted for the offence U/s 138 Negotiable Instruments Act as charged by allowing the complaint of the complainant as prayed.”

3. The brief facts of the case as placed before this Court by the learned counsel for the appellant are that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) against the respondent No.2 before the learned Court below, when the cheque issued by the respondent No.2, bearing cheque no. 657728, dated 10.2.2017 for a sum of Rs. 9,55,000/- was dishonored by the bank citing insufficiency of funds in the account of the respondent No.2.

4. Learned counsel for the appellant submits that the learned court below has passed the impugned order on the basis of minor contradictions in the statement of the appellant viz. the complainant–appellant has not filed any documents for proof of income, date and year of transaction; whereas it is an admitted fact that the respondent No.2 did not deny his signature over the cheque in question.

5. Learned counsel for the appellant further submits that the learned court below, while passing the impugned order did not consider that the respondent No.2 has given a completely incorrect and different version as regards the factual matrix of the case. And that the complainant-appellant repeatedly stated that the accused respondent made part payments in repayment of his liability to him, and only, issued a cheque to him, towards the final payment to finally discharge himself of the liability towards the complainant-appellant, and that the same was not appreciated by the learned Court below.

6. Learned counsel for the appellant thus submits that the learned court below unfairly and incorrectly, vide judgment dated 28.11.2018, acquitted the respondent No.2 of the offence alleged against him, by giving the respondent No.2 the benefit of doubt.

7. Learned counsel for the appellant placed reliance on the following judgments,

7.1 T.P. Murugan (Dead) Thr. Lrs. Vs. Bojan, 2018 (Suppl.) Civil Court Cases 351 (S.C.), relevant portion of which reads as under :

“9. The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and Pronote were signed by him, the presumption under S.139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected.

10. In view of the aforesaid facts and circumstances, the impugned order dated 27.09.2013 passed in Criminal Revision Petition Nos. 1657 and 1658 of 2008 is hereby set aside, and the order of Conviction and Fine passed by the Trial Court is restored.

11. The Appeals are allowed accordingly.”

7.2 K.S. Ranganatha vs. Vittal Shetty, 2022 (1) RCR (Criminal) 445, relevant portion of which reads as under:

“11. The position of law as noted above makes it crystal clear that when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the Accused to raise a probable defence and the standard of proof for rebutting the presumption is on prepond