The accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act by proving that the cheques were never issued by him and that the signatures on the cheque were differing.

AMOL RATTAN SINGH, J.

By this application, the applicant seeks leave to file the accompanying appeal, challenging the judgment of the learned Additional Chief Judicial Magistrate, Rewari, dated 04.12.2013, acquitting the respondents in the accompanying appeal (accused in the complaint filed by the applicant) of the charge of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. The facts, as taken from the judgment of the learned ACJM, are that the applicant-complainant (hereinafter to be referred to as the complainant) had stated in his complaint, that on 29.11.2010 the two respondents in the complaint (hereinafter to be referred to as the respondents) had taken a loan of Rs.7.5 lacs from him to purchase wheel alignment machines. In order to discharge that debt, cheque No.169279 dated 29.04.2011 was stated to have been issued for the aforesaid amount of Rs.7.5 lacs, which was presented by the complainant to his bank, i.e. Punjab National Bank Rewari, on 02.05.2011. The cheque is stated to have been returned on 03.05.2011 with the endorsement that the “Drawers' Signature Differs”. It was again presented by the complainant, upon which it was again returned with the same endorsement, in addition to the remarks that the “Payment has been Stopped by the Drawer and Funds were Insufficient”.

3. A legal notice was stated to have been issued to the respondent on 24.05.2011, who replied to it through his counsel, denying any liability to discharge any debt.

Consequently, the complaint was instituted on 14.06.2011. The complainant examined one Vinod Kumar who tendered his affidavit by way of evidence and proved a copy of the legal notice, Ex.PA, as also postal receipts, Exs.PB to PE. He further examined Ajay Sharma, Deputy Manager of the Axis Bank, Rewari, who proved the memos as Exs.PF and PG, by which the cheque was returned, as also the statement of account of the respondent-accused, i.e. M/s Ashoka Tyres, Rewari. Manoj Kumar, an officer from the PNB was also examined as PW3, who proved the statement of account of the complainant as also the deposit slips and counter deposit slip. Lastly, the complainant examined himself as PW4 and Shamsher Singh Malik, a handwriting and fingerprint expert, as PW5. This witness tendered his affidavit Ex.PW5/A and report Ex.PW5/B, as also photographs, Exs.PW5/C1 to PW5/C7.

4. The respondent-accused examined a complaint clerk from the office of the Superintendent of Police, Rewari, Pritam Singh, as PW1, who proved a copy of an application made to the S.P. Rewari and an application to the Deputy Commissioner. The Assistant Manager of the PNB, Rewari, was examined as DW2, who also proved the statement of account of the complainant. DW3 Abhinav Bhardwaj was examined to prove the statement of account of the first respondent, i.e. the firm M/s Ashoka Tyres, for the period from 01.03.2010 to 31.03.2011.

The respondent-accused also examined a handwriting and fingerprint expert as DW4, collection agent Naresh Kumar as DW5, who proved the copy of authority letter Ex.DW5/A and a retail invoice as Ex.PW5/B. DW6 Pawan Kumar was examined to prove a copy of another complaint, as Ex.PW6/A.

5. Having appraised the evidence before it, the learned trial Court found that the applicant herein, i.e. the complainant, had been cross-examined at length about his profession and source of his income, including the fact as to whether he pays income tax and filed his returns, but he did not produce any document to show such income. This was so even though his cross-examination was deferred for that purpose, on the ground that he would bring the income tax return but still did not do so.

6. The learned Court found that though the complainant had stated that apart from his income as an Advocate, he also had rental and agricultural income, no evidence was led in that regard. Further, the amount of Rs.7.5 lacs alleged to have been lent to the accused, was also without any documentation