IMPORTANT POINT
The presumption of liability under Section 139 of the Negotiable Instruments Act requires the accused to prove non-existence of debt, influencing the court's conviction decision.

JUDGMENT :

Birendra Kumar, J.

1. This appeal against acquittal of the sole respondent has been preferred under Section 378(4) Cr.P.C. Leave to appeal was allowed by order dated 29.5.2023. Though, the appellant is a victim of crime, he may have preferred appeal before the Ordinary Court of appeal under the proviso to Section 372 Cr.P.C., however, the appellant chose to approach this Court for leave to appeal and leave has already been granted. This matter is being finally disposed off by this Court.

2. Heard the parties and perused the records.

3. The case and claim of the appellant is that he had advanced Rs.4,39,000/- to the sole respondent and to ensure repayment of the same, the sole respondent had issued cheque no. 626216 on 12.5.2009 of Rs.4,39,000/- (Ex.1). The cheque was presented to the bank and the bank returned it due to “insufficient funds” on 29.05.2009 (Ex.2). Thereafter, legal notice was sent to the sole respondent on 24.6.2009 (Ex.3). A copy of the registered receipts etc. are (Ex.5, Ex.6 and Ex.7). On failure of the sole respondent to pay back the cheque amount, the complaint was filed on 16.7.2009. The complainant examined himself as PW.1 and proved the aforesaid fact through his oral evidence as well as through the documents referred above.

4. The defence of the respondent was/is that appellant was working with him and blank signed cheques were there in office, which was misused by the appellant. This defence is disclosed in the statement under Section 313 Cr.P.C.

5. No evidence has been brought on behalf of the respondent to discharge his burden under Section 139 of the Negotiable Instruments Act.

6. The learned trial Judge took out following points for consideration; whether the sole respondent had issued cheque no. 626216, dated 12.5.2009 of Rs.4,39,000/- against payment of any legal liability. The learned trial Judge concluded that the cheque was of the bank account of the accused/respondent and his signature was there on the cheque, therefore, the burden is on the accused to establish as to under what circumstances cheque travelled to the appellant. Point no. 2 was whether the cheque bounced for insufficiency of funds. The next point was whether notice was sent within 30 days of dishonour of cheque. Another point was whether the accused failed to pay back the cheque amount within 15 days of receipt of notice and whether the complaint was filed within time. It appears that all these points were taken together by the learned trial Judge. Learned trial Judge on consideration of evidence came to the conclusion that the appellant had capacity to pay the referred amount to the accused. Learned trial Judge concluded that the accused/respondent failed to discharge his burden under Section 139 of the Negotiable Instruments Act.

7. However, the learned trial Court considered certain evidences irrelevant for the purpose of deciding whether offence under Section 138 of the Negotiable Instruments Act is made out or not. Learned trial court took into notice deposition of PW.1 that there was a written agreement between the parties in respect of loan advanced and the cheque was issued for principal as well as interest of the loan amount. The said documents were not produced before the Court inspite of undertaking by the appellant. Hence, adverse inference would be drawn. Learned trial Court further noticed that the complainant had not stated anything in the complaint petition regarding interest payable on the money advanced to the accused/respondent. For the aforesaid reason, according to the trial Judge, the accused succeeded in discharging his burden under Section 139 of the Negotiable Instruments Act.

8. Learned counsel for the appellant contends that the learned trial Judge has travelled beyond the scope of requirement to prove charge under Section 138 of the Negotiable Instruments Act. Infact, the appellant had proved the requirements of under Section 138 of the Negotiable Instruments Act. The sole respondent has admitted h