The main legal point established in the judgment is that the presumption under section 139 of the N.I. Act can be rebutted by evidence to the contrary, and the accused's issuance of a cheque was not found to be for the discharge of his debt or liability.

JUDGMENT

D. Dash, J. - In this appeal under section 378 (4) of the Code of Criminal Procedure, 1973 the appellant assails the judgment dated 23.12.1999 passed by the learned J.M.F.C., Cuttack in ICC Case No. 230 of 1998 (373-T-99).

By the impugned judgment, the court below has held the respondent (accused) as not guilty of offence under section 138 of the N.I. Act and accordingly, the accused has been acquitted and consequent upon the same, the complaint filed by the appellant has been dismissed.

2. The case of the complainant in short is that he with Biswajit Mishra, Santosh Kumar Sahoo and accused had formed the partnership firm in the name and style of M/s. Software Associates for carrying on the business of training in computer software and management and other allied activities. It is stated that they had entered into the partnership deed on 02.04.1998 with contribution of Rs. 2.50 lakhs by each of them towards the capital of the said firm. It is further stated that subsequently due to some unavoidable circumstances, the complainant and another partner Santosh Kumar Sahoo desired to retire from the partnership and as per their mutual agreement, said partnership being dissolved, it was reconstituted on 25.08.1998 when accused Milan Das, Biswajit Mishra and Bhibu Charan Swain stood as partners of the said firm. It was mutually agreed that the complainant would be paid with a sum of Rs. 2.50 lakhs towards full and final settlement of all his dues in relation to that partnership firm account, so that he would have no further claim against the reconstituted firm and its partners. It is the case of the complainant that the accused Milan Das as per the agreement was to pay a sum of Rs. 2.50 lakhs to him towards full and final settlement of his retiral dues and accordingly he paid a sum of Rs. 2.25 lakhs in cash and for balance of Rs. 25,000/-, he issued a cheque dated 25.08.1998 drawn in his account with the Urban Co-operative Bank Ltd., Cuttack in favour of the complainant. The complainant receiving the said cheque placed it in his account with Allahabad Bank, Nayasarak Branch, Cuttack on 08.09.1998 for collection. The same however, bounced back with the noting as to its dishonor on account of insufficiency of funds in the said account of the accused. On receipt of the said information, notice as required under the law was duly served upon the accused demanding him to make the payment of the amount involved under the cheque and as was came no response, the complaint was lodged.

3. The accused in the trial has taken the plea of denial and false implication. It is his further case that he has paid the entire dues of Rs. 2.50 lakhs to the complainant which he was to receive as his dues towards his retrial as partner of the said firm. He, therefore, claimed that he has not committed any offence under section 138 of the N.I. Act.

4. The trial court having recorded the evidence let in by the parties has arrived at a conclusion on analysis of evidence on record that:-

(i) the complainant has not come up with clean hands;

(ii) there was no dispute between the complainant and the accused as to the payment of money;

(iii) the amount as agreed between the parties having been paid in cash as would be evident from the money receipt executed by the complainant in his own hand, there was no such subsisting debt or liability on the part of the accused towards the complainant for being discharged giving need for issuance of the cheque; and

(iv) the case of the complainant that further sum of Rs. 25,000/-was required to be paid by the accused to him for which he had issued a cheque in favour of the complainant is thus not acceptable so as to fasten the guilt upon the accused for the dishonor of cheque, vide Ext. 1.

5. Learned counsel for the appellant submits that when cheque under Ext. 1 has been issued by the accused in favour of the complainant and that has been dishonoured for insufficiency of the funds in the account of the accused, the pres