The burden of proving the case beyond reasonable doubt lies on the complainant, and the accused has the right to establish a probable defense based on the complainant's lack of financial capacity.

JUDGMENT

(Prayer: Criminal Appeal filed under Section 378(3) of Cr.P.C to set aside the Judgment passed by the learned Judicial Magistrate (Fast Track Court) Thanjavur in Crl.M.P.No.33 of 2018, dated 12.03.2020, convict and punish the accused under Section 138 of the Negotiable Instruments Act.)

1. This Appeal has been filed challenging the Judgment passed in Crl.M.P.No.33 of 2018, dated 12.03.2020 on the file of the learned Judicial Magistrate (Fast Track Court) Thanjavur, thereby acquitted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The appellant is the complainant and the respondent is the accused. The appellant lodged a complaint alleging that the respondent borrowed a sum of Rs.9,00,000/- on 23.04.2018 and he had undertaken to repay the said amount within three months. On the same day, the respondent executed a promissory note in favour of the appellant/defacto complainant. Thereafter, in order to repay the said amount, the accused had issued a post dated cheque, dated 23.08.2018 to discharge the existing valid. The appellant presented the said cheque for collection and the same was returned 'dishonoured' for the reason that 'funds insufficient'. After causing statutory notice, the appellant filed the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act.

3. On the side of the appellant, he himself was examined as P.W.1 and marked Ex.P.1 to Ex.P.6 and on the side of the respondent, he himself was examined as D.W.1 and marked Ex.D.1.

4. The trial Court, after considering the oral and documentary evidence, acquitted the respondent and dismissed the complaint. Aggrieved by the same, the present Criminal Appeal has been preferred by the appellant.

5. The learned counsel appearing for the appellant would submit that the signature in Ex.P.1 was not disputed by the respondent. In view of the presumption found under Sections 118 and 139 of the Negotiable Instruments Act, the Court below ought to have convicted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. However, the Court below held that the said cheque was not issued for subsisting liability. The amount due to one Ilangovan was not discharged by the respondent and the said Ilangovan did not demand any amount from the respondent nor he had filed any case for recovery of amount. Therefore, the said amount was borrowed from the said Ilangovan and the liability was discharged was unacceptable one. In view of the admission of signature in the cheque and the issuance of cheque, there is absolutely no defence for the respondent to succeed a case. Further, the evidence of D.W.1 would not improbablise the case of the complainant. In support of his contention, he relied upon the Judgment of the Honourable Supreme Court of India reported in CDJ 2020 SC 172 [APS Forex Services Private Limited Vs. Shakti International Fashion Linkers and others], in which, the Honourable Supreme Court of India held that when the accused has admitted the issuance of cheque and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the Negotiable Instruments Act. There exists a legal enforceable debt or liability. Further, held that Section 139 of the Negotiable Instruments Act is an example of reverse onus clause and therefore once the issuance of cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the appellant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence.

6. Per contra, the learned counsel appearing for the respondent would submit that the trial Court examined the appellant as P.W.1 and the alleged cheque was marked as E