The main legal point established in the judgment is the importance of proving the legal enforceability of debt/liability and the rebuttable nature of the presumption under Section 139 of the Negotiable Instruments Act.

ARVIND SINGH SANGWAN, J.

1. Prayer in this appeal is for setting-aside the judgment dated 08.06.2015 passed by the trial Court vide which the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (in short 'the NI Act') was dismissed.

2. Brief facts of the case are that, the complainant through its proprietor Bishambher Dayal filed the complaint against the respondent with the allegations that the complainant is dealing in the business of commission agency in the grain market and the accused is known to the complainant and had borrowed a sum of Rs.1,35,000/- and assured that he will sell the crops to the complainant and the borrowed amount will be adjusted towards the sale proceeds of the crops. It is further alleged that instead of selling the crops to the complainant, the accused sold the crops to some other commission agent and, therefore, he is in arrear of the aforesaid amount. It is further stated in the complaint that the amount was borrowed by the complainant on different dates either by way of cash or by way of cheques. It is further stated that on 27.12.2012, the accused, in discharge of his liability has issued a cheque bearing No.673820 for a sum of Rs.1,35,000/- as this amount was payable to the complainant. It is further stated that on presentation of the cheque in the bank account of the appellant with HDFC Bank, Hisar Branch, it was dishonoured with the remarks 'account is dormant' vide memo dated 29.12.2012.

3. The complainant, thereafter, sent a legal notice to the respondent/accused who failed to make the payment within the stipulated period of 15 days despite having received the legal notice dated 04.01.2013.

4. Thereafter, the complainant led his preliminary evidence and the trial Court summoned the respondent/accused vide order dated 25.04.2013.

5. The respondent/accused appeared in the Court and on receiving the notice of accusation, he did not plead guilty and claimed trial.

6. The complainant, in support of his pre-charge evidence, examined himself as CW1 and tendered his affidavit as Ex.CW1/A in examination-in-chief and also produced the documents Ex.C1 the original cheque, Ex.C2 the bank memo, Ex.C3 legal notice, Ex.C4 postal receipt and Ex.C5 the photocopy of entries in the account book. Thereafter, the complainant produced one another witness namely Vikas Mehta as CW2, who proved the documents Ex.PW2/A i.e. the photocopy of entries in the account book, Ex.PW2/B, the statement of account from 20.02.2004 to 23.02.2004 and Ex.PW2/C the statement of account and, thereafter, he closed the evidence.

7. Thereafter, the statement of the accused under Section 313 of the Code of Criminal Procedure (in short 'Cr.P.C.') was recorded and when the evidence on record led by the complainant was put to him, he denied the same and pleaded his false implication. Thereafter, the accused opted to lead his defence evidence, however, he has not examined any witness but has relied upon the documents Ex.DA to Ex.DD i.e. the photocopy of entries in the account-book (bahi-khata).

8. The trial Court, thereafter, vide impugned judgment dated 08.06.2015 dismissed the complaint and discharge the respondent/accused. The operative part of the judgment passed by the trial Court is reproduced as below:-

“14. Now comes the point that whether the accused issued the cheque in discharge of his legally enforceable debt or liability.

One of the condition under Section 138 is that the cheque in question must be drawn by the accused to discharge his legal enforceable debt or liability. Presumption under Section 139 is in favour of the holder of the cheque. A perusal of the cheque Ex.C1, shows that it bears the name of the complainant as 'payee' so, as per Section 8 of the Act, the complainant is the holder of the cheque and presumption is in his favour. But presumption under Section 139 of the Act is a rebuttable presumption and in view of the preposition of law laid down in Vijay vs Laxman and another 2