The main legal point established in the judgment is the presumption in favor of the holder under Section 139 of the Negotiable Instruments Act and the onus on the accused to raise a probable defense to rebut the presumption.

JUDGMENT

Deepak Gupta, J. - In criminal complaint bearing case code No. 205600000112014' titled as 'Uma Rani v. Rajesh Jain' filed by the appellant Uma Rani to prosecute respondent Rajesh Jain under Section 138 of the Negotiable Instruments Act, 1881 (hereafter referred as 'the N.I. Act'), acquittal has been recorded by learned Sub Divisional Judicial Magistrate, Kalka, vide judgment dated 09.06.2016, against which this appeal has been preferred.

2. As per the case pleaded by the appellant - complainant, friendly loan of Rs. 1,59,500/- was advanced by her to respondent-accused on 01.08.2010. Though, accused had promised to return the said amount within one month, but he kept on avoiding the matter on one or the other pretext. Ultimately, in order to discharge his liability, accused issued cheque No.008361 dated 03.12.2012 for an amount of Rs. 1,59,500/- drawn on Hongkong and Shanghai Banking Corporation Limited in favour of the complainant, assuring that cheque will be encashed on presentation. However, on presentation, the cheque was dishonoured, vide return memo dated 12.12.2012 with the remarks 'accounts closed'. Complainant informed the respondent-accused about the dishonour of the cheque and he promised to make the amount in cash within 2-3 days, but he failed to make the payment. Complainant then served a legal notice dated 18.12.2012 and sent the same to the accused through registered post asking him to make payment of the cheque amount within 15 days of the receipt of the notice. The accused failed to do so, which compelled the complainant to file the complaint on 11.01.2013.

3. After recording preliminary evidence, respondent-accused was summoned to face prosecution under Section 138 of the N.I. Act. On his appearance, he was served with notice of accusation under Section 138 of the N.I. Act on 06.01.2014, to which he pleaded not guilty and claimed trial. Complainant appeared in the witness box as her own witness as CW1. Statement of the accused under Section 313 Cr.P.C. was recorded. He did not adduce any defence evidence. After hearing both the sides, learned Trial Magistrate recorded acquittal as mentioned earlier.

4. It is contended by learned counsel for the appellant- complainant that learned Trial Court misread the entire evidence of the appellant-complainant. Appellant-complainant stated during cross-examination that she had withdrawn an amount of Rs. 1,00,000/- from her bank account two days before advancing the loan to the respondent-accused. The bank statement produced before this Court in additional evidence supports her statement in this regard. The appellant-complainant had also stated that her both sons and daughter-in-law were also working and that she was living in a joint family, proving that she had the financial capacity. The Trial Court failed to consider that in his statement under Section 313 Cr.P.C., respondent-accused alleged that his signed cheque was stolen but he neither lodged any DDR nor any complaint. So much so, respondent-accused even did not reply to the legal notice regarding stealing of the cheque or misuse of the same. The appellant-complainant submits that in fact respondent-accused himself had issued the duly filled in and signed cheque to discharge his liability. However, learned Trial Court ignored the statement under Section 313 Cr.P.C. Besides, respondent-accused did not enter the witness box nor led any evidence to support his stand and as such, the statement of the respondent-accused to the effect that his cheque was stolen, is not at all believable.

5. Refuting the aforesaid contentions, learned counsel for the respondent-accused defended the Trial Court judgment and submitted that acquittal has been rightly recorded.

6. I have considered submissions of both the sides and have also perused the record carefully.

7. Ex. C-1 is the cheque dated 03.12.2012 for Rs. 1,59,500/-. EX. C-2 is the bank return memo dated 12.12.2012 issued by the bank, as per which cheque was dishonoured due