The statutory presumption in favor of the complainant under Section 139 of the Negotiable Instruments Act is rebuttable, and the High Court should act in an appeal from an order of acquittal based on specific principles.

JUDGMENT :

Pankaj Jain, J.

Prayer is for grant of leave to appeal under Section 378(4) of the Code of Criminal Procedure against judgment dated 10.08.2018 passed by JMIC, Guruharsahai, whereby the complaint preferred by the applicant under Section 138 of Negotiable Instruments Act (in short ‘the Act’) stands dismissed acquitting the respondent.

2. Complaint was preferred by the applicant against the respondent under Section 138 of the Act claiming that he and accused are known to each other. A loan amounting to Rs.3 lakh was extended by the complainant to the accused in the month of December, 2015. In order to discharge his legal liability, the accused issued cheque bearing No.199595 dated 04.01.2016 amounting to Rs.3 lakh drawn on State Bank of India in favour of the complainant. The same was presented by him. It was dishonoured with the remarks ‘payment stopped by drawer’.

3. After trial, the complaint stands dismissed by the trial Court observing as under:-

“xx xx xx

12. Now guaging at the pleadings of the parties and going through the evidence on file, it follows that accused has been successful to defy the allegations levelled against him. Neither in complaint, nor in his affidavit Ex.CW.1/A the complainant has specifically mentioned the date on which he alleges to have lent money to the accused. Another important aspect of this case that is worth taking note of is that though complainant has alleged in his complaint to have given Rs. 3 Lac on demand by accused but in his cross-examination as CW.1, the complainant has submitted that he lent Rs. 2 Lac to accused on 5 December. CW.1 Sukhcharan Singh has also stated in his cross-examination that he had taken Rs.2 Lac from one Iqbal Singh to be given to the accused. Firstly this fact does not find anywhere mentioned either in his pleadings or in examination in chief. Secondly it also shows that the complainant himself was not having any money to be given to the accused when the latter allegedly demanded the money in question. In that case, what was the need to lend money to accused who was residing in some different village, not even remotely related to the complainant, and they were merely acquainted to each other as claimed by complainant. Then importantly in the light of these facts now looking at Mark CX bank statement of complainant and Mark C.Y bank statement of accused, though not exhibited but while taking judicial notice, there is only Rs.1899/- in the account of complainant at particular point of time, whereas looking at the detail of bank statement of accused, there is sufficient amount of about Rs. 3 Lac or so in his account throughout from 31.5.2015 onwards till 13.6.2016. So there seemed no necessity for the accused to demand any money from the complainant.”

3. Learned senior counsel for the applicant does not deny that there is any evidence on record which was not read by the trial Court. However, he submits that once the accused admitted signatures on the cheque leaf, trial Court ought to have convicted him in the light of statutory presumption in favour of the applicant.

4. I have heard counsel for the applicant and have gone through the records of the case.

5. There cannot be any denial to the proposition being canvassed by the counsel representing the applicant that the admission of signatures on the cheque leaf by the accused invokes statutory presumption in favour of the complainant. However, at the same time, it cannot be denied that such presumption in favour of the complainant is rebuttable.

6. Trite it is otherwise that it is not necessary that the accused must lead evidence to rebut the presumption. In order to rebut the presumption, he is required to raise defence based on preponderance of probabilities. Accused may not necessarily lead evidence and can take advantage of the evidence adduced by the complainant. Reference can be made to law laid down by Apex Court in the case of Rangappa Vs. Sri Mohan, (2010) 11 SCC 441, wherein it has been observed as under:-