The presumption of liability under Section 139 of the Negotiable Instruments Act is rebuttable, requiring the accused to create reasonable doubt about the existence of debt.

JUDGMENT

1. The appellant has filed the present criminal leave to appeal being aggrieved by the judgment dt. 29.11.2019 passed by the learned Judicial Magistrate, Jaisalmer in Criminal Regular Case No. 774/2013 (1188/14), whereby the learned Magistrate has acquitted the respondent no.2 for offence under Sec. 138 of the Negotiable Instruments Act ('the Act', for short).

2. Briefly, the facts of the case are that appellant filed a complaint under Section 138 of the Act alleging that the respondent No.2 had taken loan from the appellant in the sum of Rs. 35,000/- and the appellant Bank sanctioned the said loan on 11.11.2005 and the respondent accused agreed to pay the instalments regularly and against the said loan the respondent submitted a cheque of Rs. 44,000/- No. 723213 dated 16.02.2012. It is alleged that when the appellant presented the cheque in the Bank, the same was dishonoured due to want of sufficient funds. Subsequently, the complainant sent a registered notice to the respondent. However, despite receiving the notice, the respondent did not make the payment and settle the account, therefore, he filed a complaint under Section 138 of N.I. Act.

3. The learned trial court after taking cognizance of the offence issued notice to the respondent accused who appeared in the Court, denied charges and claimed trial.

4. After going through the oral and documentary evidence, vide judgment dt. 29.11.2019, the learned Magistrate acquitted the accused-respondent. Hence, this criminal leave to appeal.

5. Learned counsel for the appellant, has vehemently contended that the learned court has erred in acquitting the respondent on the ground that the appellant has failed to bring home the charge for offence under Section 138 of the Act. It is further argued the respondent had not discharged the burden of proving as to why the cheque was given by him to the appellant. Therefore, according to the learned counsel, the impugned judgment deserves to be interfered with. Learned counsel relied upon decision of Hon'ble Supreme Court in the case of Reema Aggarwal Vs. Anupal & Ors reported in (2004) AIR (SC) 1418, K.N. Beena Vs. Muniyappal & anr reported in (2001) AIR (SCW) 4344, A.V. Murthy Vs. B.S. Nagabasavanna reported in (2002) AIR (SC) 985, Hiten P. Dalal Vs. Bratindranath Banerjee reportedin (2001) AIR (SC) 3897 and Kumar Exports Vs. Sharma Carpets reported in (2009) AIR (SC) 1518.

6. I have heard the learned counsel for the appellant and perused the impugned judgment.

7. The learned counsel for the appellant has contended that a sum of Rs. 35,000/- was taken as loan by the respondent, however, the appellant failed to produce any relevant document like Bank statement or loan sanction letter to prove that the cheque was issued against the loan taken by the respondent.

8. A bare perusal of the impugned judgment clearly reveals that the learned trial court has given the cogent reasoning for acquitting the accused-respondent. It has been concluded by the learned court below that the appellant has failed to prove that the cheque in question was issued by the respondent against the loan sanctioned to him and therefore, if the cheque was dishonoured for want of sufficient funds, the same does not constitute an offence under Section 138 of the Act. Learned court further observed that the appellant Bank failed to produce any documentary proof to fortify the fact that loan was disbursed to the respondent no.2. Except a bald statement in the complaint that the disputed cheque was issued towards payment of loan amount, there is no document produced on record with regard to sanction of loan, disbursement of loan, bank statement and what amount is unpaid. In my considered view, it would be hazardous to convict the respondent only on the basis of the presumption under section 139 of the Act in the absence of any material, and which material ordinarily would be expected to be in the complainant's possession and control, to show that loan was in fact disbursed to