The issuance of a cheque creates a presumption of liability under Sections 138 and 139 of the Negotiable Instruments Act, which shifts the burden to the accused to prove otherwise.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 31.03.2011, passed by learned Judicial Magistrate First Class, Court No. IV, Una, District Una, H.P., vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed and the respondent (accused before the learned Trial Court) was acquitted (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 against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of IPC. It was asserted that the father of the complainant is suffering from paralysis. He sold his vehicle i.e. Tata Sumo bearing registration no. HP-20A-4196 to Surinder Singh for consideration of Rs. 2,10,000/- in April, 2005. Surinder Singh paid a sum of Rs. 70,000/- in cash and got his vehicle financed for Rs. 1,40,000/- with M/s Chadha Associates through its Proprietor Suddhir Nischal, the present accused. The accused paid a sum of Rs. 1,10,000/- through cheque. He also issued a cheque for Rs.46,000/- (Rupees 40,000/- Principal + Rupees 6000/- interest) bearing Cheque No. 352713, dated 20.8.2005 of Oriental Bank of Commerce, Una in favour of the complainant. The complainant deposited the cheque for collection with his banker. However, the cheque was dishonoured vide memo dated 05.09.2005 with an endorsement “Insufficient Funds”. The complainant served a legal notice dated 15.09.2005, upon the accused, which was received by him on 16.09.2005. The notice was issued to the accused to make the payment within 15 days from the date of its receipt. However, the accused failed to pay the amount. Hence, the complaint was filed to take action against the accused.

3. The learned Trial Court recorded the preliminary evidence and found sufficient reasons to summon the accused. When the accused appeared before the learned Trial Court, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The accused pleaded not guilty and claimed to be tried.

4. The complainant examined Hem Chand (CW-1), Sohan Singh (CW-2), himself (CW-3), Des Raj (CW-4), and Surinder (CW-5) and closed the evidence.

5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the case of the complainant except that he had issued a cheque. He stated that he was not the Proprietor of Chadha Associates and that he was falsely implicated. He stated that he wanted to lead defence evidence. However, he did not provide any evidence and closed the evidence on 04.01.2011.

6. The learned Trial Court held that no agreement was proved to establish that the accused was to pay some amount to the complainant’s father. The complainant admitted in his cross- examination that the balance amount of Rs.46,000/- was to be paid by Surinder Singh and he had no concern with the accused. The complainant admitted that Surinder Singh was to make the payment after getting the vehicle financed, which means that the amount was to be paid by Surinder Singh and not by the accused. The complainant’s father stated that the accused paid him an amount of Rs.1,00,000/- in cash, which is contrary to the complaint, in which it was mentioned that Rs.1,10,000/- was paid by cheque. The accused was under a legal obligation to pay the amount; therefore, the complaint was dismissed.

7. Feeling aggrieved and dissatisfied with the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court erred in acquitting the accused. It was duly established that the accused had issued a cheque for Rs.46,000/- in the discharge of his legal liability. The defence raised by the accused that he had not financed the whole am