The presumption under Section 139 of the NI Act mandates that a cheque is presumed to be issued for discharge of a debt unless the accused proves otherwise.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 05.03.2011 passed by learned Judicial Magistrate, First Class (JMFC-III), Shimla, vide which the complaint of the appellant (complainant before the learned Trial Court) was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments (NI) Act. It was asserted that the accused handed over a cheque bearing no. 883400 dated 22.04.2003 to the complainant for Rs. 7,50,000/-drawn on UCO Bank, Tikkar in the discharge of his liability. The complainant sent the cheque for its collection to his bank. The complainant’s bank forwarded the cheque to the drawee bank. However, the cheque was dishonoured with the remarks ‘insufficient balance’. The complainant issued a notice to the accused through his counsel asking him to pay the amount within 15 days from the date of the receipt of the notice. The notice was duly served upon the accused but he failed to pay the amount; hence, the complaint was filed for taking action against the accused.

3. The learned Trial Court found sufficient reasons to proceed against the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried.

4. The complainant examined Vattan Singh (CW1), Ajeet Bhutail (CW2), Jagdish Chand Sharma (CW3), and Vinay Kumar (CW4).

5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the case of the complainant. He stated that he was dealing with Van Leer Moulded Fibre India Limited, who used to supply the apple trays in the name of AC Claridge. He had handed over a signed cheque to the Company, which was misused by it. Statement of Suneet Kalra (DW1), Wattan Singh (DW2), accused himself (DW3) were recorded in defence.

6. The learned Trial Court held that the cheque carries with it a presumption that it was drawn for valid consideration and in the discharge of the legal liability. The burden lies upon the accused to rebut this presumption. The complainant failed to produce the account books/ledger showing the business transactions with the accused. He had failed to produce the challan showing the consignment of apple trays to the accused. The accused stated that he had business transactions with M/s Van Leer Moulded Fibre India Limited. Ajeet Bhutail (CW2) admitted that he was a forwarding agent of M/s Van Leer Moulded Fibre India Limited. However, he had failed to establish his plea that all the business of Van Leer Moulded Fibre India Limited was carried through him. The version of the accused that he was dealing with Van Leer Moulded Fibre India Limited was highly probable. The accused had successfully rebutted the presumption of consideration attached to the cheque by his evidence; hence, the accused was acquitted.

7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court did not properly appreciate the material placed before it. It was duly proved that the accused used to purchase the apple trays from the complainant and make the payment to the complainant. The account was settled between the complainant and the accused. The accused issued a cheque in discharge of his legal liability. Learned Trial Court erred in holding that the complainant was bound to produce the record to prove the consideration. Learned Trial Court relied upon Ext. D1, which was only a copy of the challan regarding the supply of apple trays. Learned Trial Court erred in construing it to be a copy of the ledger. This document was also not proved as per the law. The ve