The ability to rebut the presumption under Section 139 of the Negotiable Instrument Act and the burden of proof regarding the existence of legally enforceable liability were central to the court's decision.

1. Heard learned counsel for the parties.

2. Petitioner seeks special leave to appeal in terms of Section 378(4) of the Code of Criminal Procedure against the judgment of acquittal dated 20th January, 2018 passed by learned Judicial Magistrate, 1st Class, Dhanbad in C. P. Case No. 1789 of 2015/T.R. Case No. 1761 of 2018, whereunder the sole accused/opposite party no. 2 has been acquitted of the charge under Section 138 of Negotiable Instrument Act.

3. Complainant alleged that the accused being the owner of depot run in the name and style of M/s. N. K. Coal at Barwadda, used to purchase coal from his Firm M/s. Jai Bajrang Enterprises at Hetlibandh, Jharia, District-Dhanbad on credit during the period 17th November, 2012 to 23rd February, 2013. On several requests, he handed over three Cheques to the complainant bearing nos. 009079 dated 27th April, 2015 of Rs. 1 lakh, 009082 dated 4th May, 2015 of Rs. 2 lakhs and 009083 dated 25th May, 2015 of Rs. 4,67,261.00 drawn at Union Bank of India, DGMS Branch, Dhanbad for payment of his outstanding dues to the tune of Rs. 7,67,261.46/-. These three Cheques on being deposited on 8th June, 2015 were dishonoured for want of insufficient fund as per return memo dated 10th June, 2015 issued by the Bank. Complainant sent legal notice through speed post and courier on 17th June, 2015, which was received on 18th June, 2015. However, the accused did not reply neither repaid the amount. The complaint case was instituted under the aforesaid section thereafter.

4. The accused was summoned to face trial under Section 138 of N.I. Act after examining the complainant on Solemn Affirmation vide order dated 10th September, 2015. On his appearance, accusation was explained to him to which he pleaded not guilty and claimed to be tried. Statement of the accused under Section 313 Cr.P.C was recorded on 20th June, 2017. His case was that the Cheques were issued as security.

5. During trial complainant examined himself as C.W.-1 and produced the following documents:

“Cheque no. 009079, Cheque no. 009082 and Cheque no. 009083 Ext.-1, 1/1, 1/2 respectively. Deposit slip dated 08.06.15 Ext.-2, Cheques’ return memos Ext.-3, 3/1 and 3/2 respectively, Cheque return memo of HDFC, Dhanbad dated 10.06.15 and it has been marked Ext.-4, Signature of P.W.1 and signature of his advocate on each pages of the legal notice has been marked Ext.-5, 5/1, 5/2 and 5/3 respectively, Speed post and courier slip has been marked Ext.-6, Receiving of courier has been marked Ext.-7 and he identified his signature and his advocate’s signature on each pages of the complaint petition and the whole complaint petition has been marked Ext.-8 and 8/1 respectively.”

C.W.-1 supported his case in full during examination-in-chief and asserted that the accused owed Rs. 7,67,261.46 against purchase of coal on credit between the period 17th November, 2012 to 23rd February, 2013. Three Cheques were issued in lieu thereof and on presentation, were dishonoured due to insufficient fund. In his cross-examination, he stated that the accused failed to pay this amount despite several requests. Cheques were issued after 2 ½ -3 years of purchase of coal. Though there were persons like Mithlesh Kr. Upadhyay and Rajesh Singh at the time he received the Cheques, but there were no return memo given with the Cheques regarding the dues for which it has been given. He denied the suggestion that there was no dues on the accused.

6. Defence examined Ashok Tiwari as D.W.-1. He stated that the accused was in the business of coal with the proprietor Firm of complainant. He knew that the accused had purchased coal from the complainant and as a security, given him total 9 Cheques on 16th November, 2012. All the Cheques were signed. Complainant supplied coal from 17th November, 2012 to 23rd February, 2013. Total coal supplied was worth Rs. 7,67,000/- approximately and in lieu whereof, the accused had issued Cheque worth Rs. 7,20,000/-. Bank statement of 11 pages dated 6th Ja