The presumption of consideration for a cheque does not negate the complainant's burden to prove the existence of a legally recoverable debt, which can be rebutted by the accused.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 19.05.2010, passed by learned Judicial Magistrate, First Class, Nahan District Sirmaur, H.P (learned Trial Court), vide which the complaint filed by the appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of Negotiable Instruments Act (in short ‘NI Act’) was dismissed and respondent (accused before 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 revision 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 NI Act. It was asserted that the accused had family relations with the complainant. The accused borrowed a sum of Rs.95,000/- from the complainant in December 2005. She promised to repay the amount on or before 14.03.2006. She issued a cheque bearing No. 278852 drawn on Punjab National Bank for a sum of Rs.95,000/- in the discharge of her legal liability. The complainant presented the cheque before his bank-State Bank of India, Nahan from where, it was sent to the Bank of the accused for realization, however, the cheque was dishonoured with an endorsement of ‘insufficient funds’. The complainant issued a notice asking the accused to pay the amount within 15 days of the receipt of the notice. The notice was delivered to the accused and he acknowledged the delivery vide receipt dated 27.03.2006. The accused failed to pay the amount despite the receipt of the notice of demand; hence, the complaint was filed against the accused for taking action as per the law.

3. The learned Trial Court found sufficient reasons to summon the accused for the commission of an offence punishable under Section 138 of the NI Act, to which, the accused pleaded not guilty and claimed to be tried. The complainant examined himself (CW1) and Prakash Chand (CW2) to prove his case.

4. The accused in her statement recorded under Section 313 of Cr.P.C. denied the complainant’s case in its entirety. She stated that the complainant made a false statement against her and she was not to pay any money to the complainant. She was falsely implicated in the present case. Initially, the accused stated that she wanted to lead defence evidence but subsequently, no evidence was led.

5. The learned Trial Court held that the complainant asserted in his statement on oath that the accused had demanded money for treatment of her medical ailment. The accused was working as a peon and in the absence of any medical record, the plea of the complainant that he had advanced a sum of Rs.95,000/- towards the domestic need/medical ailment was not probable. The complainant claimed that he was engaged in the business of selling milk. He was an income tax payee, however, he did not produce any evidence to establish his financial capacity. The complainant asserted in the complaint that the accused promised to pay the money on or before 14.03.2006, however, he stated that the cheque was issued on the date of advancing of the loan, which is contrary to the averments in the complaint. The receipt of notice of demand was not sufficient in the absence of evidence regarding the legal liability of the accused, therefore, the accused was acquitted of the commission of an offence punishable under Section 138 of the NI Act.

6. Being aggrieved from the judgment passed by the learned Trial Court, the complainant filed the present appeal asserting that the accused did not dispute her signatures and there is a presumption of consideration attached to the cheque. Learned Trial Court erred in shifting the burden of proof upon the complainant. The accused was to discharge the burden by showing that the cheque was not issued for legal liability. Learned Trial Court erred in drawing a d