IMPORTANT POINT
The judgment emphasizes the principles of presumption in favor of the accused under Section 139 of the NI Act and the requirement of thorough scrutiny before reversing an order of acquittal.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 21.10.2011, passed by learned Judicial Magistrate First Class (JMFC) III, Shimla, vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments (NI) Act. (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 NI Act. It was asserted that the accused borrowed Rs.52,000/- from the complainant in June 2006 for his personal needs. The accused issued a post-dated cheque (Ex.CW-1/A) in the discharge of his legal liability. The complainant presented the cheque before his bank; however, it was returned with the endorsement ‘exceeds arrangement’. The complainant served a notice (Ex.CW-1/C) upon the accused; however, the accused failed to pay the amount despite the receipt of the notice. Hence, the complaint was filed for taking action against the accused as per the law.

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

4. The complainant examined himself (CW-1), Shankar Lal (CW-2), Manohar Lal (CW-3), Swaroop Sharma (CW-4) and Puran Chand (CW-5).

5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the complainant’s case in its entirety. He examined Puran Chand (DW-1) and himself (DW -2) in defence.

6. Learned Trial Court held that the issuance of the cheque was not disputed. There is a presumption that a cheque was issued in discharge of legal liability but this presumption is rebuttable. The statement of Puran Chand Thakur (DW-1) shows that the accused had ordered the electricity goods from the complainant. He issued a cheque towards the payment of the goods. The goods were not supplied. The defence evidence rebutted the presumption of consideration attached to the cheque. Resultantly, the accused was acquitted.

7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed. It has been asserted that the learned Trial Court misconstrued the provisions of the NI Act. The accused admitted the issuance of the cheque and there is a presumption that the cheque was issued in discharge of the legal liability. This presumption was duly supported by the evidence of the complainant. Learned Trial Court ignored the evidence of the complainant. The statement of Puran Chand (DW-1) was not satisfactory. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

8. I have heard Mr. Alok Ranjan, learned counsel for the appellant-complainant and Ms. Heena Chauhan, learned counsel for the respondent-accused.

9. Mr. Alok Ranjan, learned counsel for the appellant-complainant submitted that the learned Trial Court did not properly appreciate the material placed before it. There is a presumption that the cheque is issued in discharge of legal liability and the burden is upon the accused to rebut the presumption by leading satisfactory evidence. The version that the accused had purchased electrical goods from the shop of the complainant was propounded for the first time by examining Puran Chand (DW-1). This plea was never taken in the statement recorded under Section 313 Cr.P.C. and could not be taken subsequently. He relied upon the judgment of Prem Chand Vs. State of Maharashtra 2023 (5) SCC 522 in support of his submissions.

10. Ms Heena Chauhan, learned counsel for the accused-respondent supported the judgment of the learned Trial Court and s