The presumption under Section 139 of the Negotiable Instruments Act is rebuttable and the accused can discharge the burden of proof by raising a probable defense.

JUDGMENT

Vinod S. Bhardwaj, J. - The question which arises for consideration in the instant appeal is as to whether an accused would be held liable for conviction in an offence under Section 138 of Negotiable Instruments Act, merely on the strength of a fact that the signature on the cheque in question is not in dispute?

2. The present appeal has been filed against the judgment dated 26.09.2008 passed by Chief Judicial Magistrate, Tarn Taran, thereby acquitting the respondent-accused of the charges under Section 138 of the Negotiable Instruments Act, 1881.

FACTS

3. Before adverting to the merits of the instant case, facts in brief as have led to the filing of the present appeal are adverted to. The appellant instituted the criminal complaint No.46 dated 30.09.2004 for offence under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881, alleging that the complainant is a partnership firm and is engaged in the business of merchant and commission agent at Grain Market, Tarn Taran. It is alleged that the respondent-accused used to bring his crops for sale at the shop of the complainant and get money as loan from the firm of the appellant-complainant for his personal needs. It is also alleged that the appellant/complainant is maintaining a ledger account related to the transactions with the respondent-accused and a sum of Rs. 50,000/- became due and payable by the respondent-accused to the appellant. Cheque No.0835704 dated 20.07.2004 was issued by the respondent-accused in discharge of his liability for a sum of Rs. 50,000/-, drawn on State Bank of Patiala, Branch Tarn Taran. The said cheque was dishonoured by the bank on account of 'insufficient fund' vide memo dated 22.07.2004. Notice in terms of Section 138 Negotiable Instruments Act, 1881 was sent to the respondent-accused, however, despite expiry of the period, the payment was not made. Hence, complaint in question was instituted.

4. The respondent-accused was summoned and the trial commenced. The appellant has appeared and led no other evidence. Upon consideration of the evidence as well as arguments advance by the respective parties, the trial Court acquitted the respondent-accused of the charge. The following discrepancies/deficiencies were noticed by the trial Court:

(i) Appellant-complainant failed to establish that there was a legal enforceable debt or liability outstanding towards the respondent when the cheque in dispute was allegedly issued.

(ii) Even though, the complainant-appellant claimed to maintain a ledger regarding transaction between the parties, however, no ledger was produced before the Court in evidence.

(iii) Even though, all amounts beyond Rs.20,000/- are required to be advanced through bank in terms of Section 269 SS of Income Tax Act, however, the complainant-appellant has failed to detail the mode in which advance was made.

(iv) No document has been produced by the appellant before the Court as to whether he was in the money lending business and if so, what was the rate of interest on which the loan was advanced.

(v) The conduct of the appellant-complainant is not that of an ordinary prudent person. There is no document executed in support of the loan.

(vi) Withholding of the best document in the form of ledger account books by the appellant-complainant would render him susceptible to an adverse inference.

5. Learned counsel appearing on behalf of appellant has argued that the finding recorded by the trial Court was perverse and liable to be set aside. He contends that the complainant did not examine any witness in support of his defence and that the mere fact that the signatures on the cheque are not disputed. The respondent-accused is liable to be prosecuted as an inference has to be drawn against him under Section 118 read with Section 139 of Negotiable Instruments Act. He further submits that the accused-respondent never informed his bank to stop payment in case the cheque in question had been misplaced and had also not lodged any