IMPORTANT POINT
The presumption under Section 139 of the NI Act that a cheque is issued for discharge of a debt or liability unless proven otherwise, and the accused's burden to raise a probable defense to rebut the presumption.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 28.08.2009 passed by learned CJM, Shimla vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed. (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 against the accused before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). It was asserted that the complainant is running a business under the name and style of M/s Shakti Traders at 35/6 Anaj Mandi, Shimla. He is the sole proprietor of the concern. The accused issued a Cheque (Ext.CW1/A) in the discharge of his legal liability on 16.03.2006 for a sum of Rs.50,000/- drawn on State Bank of India, Deha Branch. The complainant presented the cheque before his banker M/s UCO Bank Shimla from where it was sent to the bank of the accused. The bank of the accused dishonoured the cheque with the remark ‘insufficient funds’ and issued a memo (Ext. CW1/C). The Bank of the complainant returned the cheque with the memo (Ext.CW1/C) vide its memo (Ex.CW1/B). The complainant issued a notice (Ext.CW1/D) to the accused asking him to pay the amount within 15 days of the receipt of the notice. The notice was returned undelivered with an endorsement that the addressee had gone to Ludhiana. The accused knew about the notice and procured a false endorsement on the registered letter. He failed to pay the amount despite the knowledge of the notice; hence, the complaint was filed to take action against the accused.

3. The learned Trial Court summoned 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 himself (CW1), Pyare Lal (CW2) and Babu Lal Sharma (CW3) to prove his case.

5. The accused in his statement recorded under Section 313 Cr.P.C. denied the case of the complainant. He stated that he had issued a security cheque, which was misused by the complainant. A false case was made against him. No defence was sought to be adduced by the accused.

6. The learned Trial Court held that the complainant failed to produce the Books of Account or their abstract to show the liability of Rs.50,000/-. Non-production of the Books of Account renders the complaint doubtful. He admitted in his cross-examination that the cheque was issued as a security. Hence, the possibility of covering the past transaction not permissible under the law being barred by time could not be ruled out. The complainant also admitted that the accused did not owe any amount to him at the time of the issuance of the cheque and his claim that he had withdrawn the amount from the Bank was not corroborated by summoning the record from the Bank. Reliance was placed upon the judgment of the Hon’ble Supreme Court in M.S.Narayana Menon @ Mani vs. State of Kerala & Anr., 2006 (3) Criminal Court Cases 665 (S.C), Sudhir Kumar Bhalla vs. Jagdish Chand & ors., 2009 (2) Criminal Court Cases 199 (S.C.) and judgment of this Court in M/s Kamal General Store vs. Kishori Lal Vij Latest HLJ 2008 (HP) 1474 and 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 failed to properly appreciate the material placed before it. The accused did not step into the witness box and an adverse inference should have been drawn against him. No defence was raised by the accused to discredit the evidence of the complainant. The accused asserted that the cheque was issued as a security, as well as the cheque was taken forcibly by intimidating him 5-6 years ago in connection wit