The presumption of debt under Section 139 of the NI Act is rebuttable, requiring only a probable defense from the accused, not proof beyond reasonable doubt.

ORDER :

1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 23.08.2022 passed by the learned 2^nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in Criminal Case No. 52516 of 2018, whereby the respondent No 2 original accused came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”). The respondent No 2 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under:

2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a friendly loan of Rs. 50,00,000/- from the applicant during the period November -2015 to May 2018 on different occasion for his personal need. The accused filed bogus complaint against the applicant to avoid to make payment at Lal Gate Police Station and the matter was settled and the accused had issued a cheque bearing no. 000090 from his account with Bank of Baroda Bhaga Talav Branch, Surat for Rs.20,00,000/- dated 27^th August 2018. The applicant deposited the said cheque on 27.08.2018 in his bank and the same was dishonored and the reason mentioned in the return memo dated 29.08.2018 was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 11.09.2018 against which no reply was given and no payment was made though it was served on 14.09.2018 and 18.09.2018. The applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Surat under Section 138 of the NI Act, 1881 which was registered as Criminal Case no. 52516 of 2018.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded and the evidence of the applicant was taken on record. The applicant was examined as a witness and 05 documentary evidences were produced in support of the case and after the closing pursis at exhibit 33 was filed, the further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure in which he pleaded that the blank cheques were given as a security and the applicant has filed a false complaint and has failed to prove the case. The applicant has not produced any evidence to show that the amount has been given to accused. The arguments of the advocates for both the parties were heard and by impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N.I.Act.

3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly considered and interpreted evidence on record and presumption of Sections 118 and 139 of the Act.

4. Heard learned advocate Ms. Mita S. Panchal appearing for the applicant and learned APP Mr. Bhargav Pandya for the respondent – State and learned advocate Mr. Arpit A. Kapadia for the respondent No.2.

5. Learned Advocate Ms.Mita Panchal for the applicant submits that the deposition of the applicant has been recorded at exhibit 4 and the issuance of the cheques and the signatures have not been disputed, except at the time of rec