The importance of maintaining detailed accounts and corroborating evidence in cases of cheque dishonour.

Tarlok Singh Chauhan, J.

The appellant is the complainant, who aggrieved by the acquittal of the respondent in a case instituted by him under Section 138 of the Negotiable Instruments Act (for short the 'Act'), has filed the instant appeal.

2. It is averred that the appellant and respondent were having friendly relations as the respondent was doing the business of fast food and milk made items, whereas the appellant was supplying milk to him for the aforesaid purpose. After settlement and reconciliation of accounts, the respondent issued cheque No.275900 dated 31.8.2011 amounting to Rs.2,20,000/- payable at Kangra Co-operative Bank Ltd. Branch Office, Katrain. However, the same was dishonoured due to "insufficient funds" in the account of the respondent. Thereafter, the appellant issued a statutory legal notice to the respondent on 13.10.2011, which was duly replied by the respondent wherein it was alleged that cheque book of the respondent from serial Nos. 275893 to 275900 was misplaced.

3. After recording the preliminary evidence, the respondent was summoned; notice of accusation under Section 138 of the Act was put to the respondent, to which he pleaded not guilty and claimed trial.

4. The appellant examined himself as CW-1 and he also examined CW-2 Rahul. The statement of respondent under Section 313 Cr.P.C. was recorded to which he denied the case of the appellant and thereafter the respondent led evidence and in addition to examine himself, examined two additional witnesses. The learned trial Court after evaluating the same, dismissed the complaint, constraining the appellant/complainant to file the instant appeal.

5. It is vehemently contended by Mr. G.R. Palsra, learned counsel for the appellant that the findings recorded by the learned Court below are perverse as it has failed to take into consideration the presumption attached to the Negotiable Instrument under Sections 118 and 139 of the Act as the accused/respondent has not been able to dispel such presumption by establishing probable defence whereby the onus would again shifted to the complainant.

6. On the other hand, learned counsel for the respondent would vehemently argue that since a false case has been fastened against the respondent, therefore, he is rightly acquitted by the learned Court below.

I have heard the learned counsel for the parties and have also gone through the material placed on record.

7. Sections 118 and 139 of the Act, read as under

"118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made:-

(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of endorsements that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

1 [139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a