Judgment

Mr. Avneesh Jhingan, J.

This is an application under Section 378(4) Cr.P.C. seeking leave to appeal against judgment of acquittal in Criminal Complaint No. 12312 of 2017, under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’).

2. The brief facts as per the complainant (applicant herein) are that during February, 2013 to March, 2015 respondent (Ashok Kumar Shukla) borrowed a loan of Rs.14,50,000/- from the applicant. For repayment of part of loan, the respondent issued a cheque bearing No. 645843 dated 3.7.2017 amounting to Rs.3,00,000/-. On presentation the cheque was dishonoured with the remarks “funds insufficient”. After issuance of legal notice, the complaint was filed.

3. The respondent took defence that loan of Rs.3,00,000/- was borrowed from the applicant in the year 2012 and the cheque was given as security. The loan was repaid from July, 2016 to December, 2016 but the applicant did not return the cheque stating that it was mis-placed and later misused it. Second defence was that the respondent had never taken loan of Rs.14,50,000/- from the applicant, rather the amount credited in his account in the years 2014-15 was to be utilised by one Vakil Thakur. Further that the respondent and his wife had never issued three cheques of Rs.4,50,000/, Rs.6,00,000/- and Rs.4,00,000/-. The respondent to substantiate the defence examined Mandeep, Clerk in Punjab National Bank, Branch Sector 16-D, Chandigarh. He deposed that the cheque in question was the first cheque from cheque book No. FBP/645831 issued on 18.8.2011 and thereafter two cheque books were issued on 14.6.2013 and 24.6.2014. Nutan Thakur widow of Vakil Thakur was examined as DW1. She supported the defence of the respondent stating that the amount credited in the account of the respondent was utilised by her deceased husband who cleared the loan during his life time.

4. The applicant himself stepped into the witness box and stated that the cheque was issued by the respondent to clear the outstanding installments in pursuance to the compromise dated 16.7.2016. He substantiated the filing of complaint with the police and the statements made before SSP, Mohali for clearing the loan amount of Rs.14,50,000/- in monthly instalments of Rs.50,000/-.

5. Learned counsel for the applicant submits that signature on the cheque was not disputed. The statement recorded in the office of SSP, Mohali is relied upon to contend that the respondent had to make payment of Rs.50,000/- per month to clear the loan of Rs.14,50,000/-.

6. The law is well-settled that the presumptions under Sections 118 and 139 of the Act in favour of the holder of the cheque are rebuttable. There is no dispute on the proposition that rebuttal of presumption is not to the extent of proving beyond reasonable doubt but has to be on principle of probabilities and preponderance. On rebuttal of the presumption, the onus shifts on the complainant.

7. The Supreme Court in Vijay v. Laxman and another , 2013(2) JT 562 held as under:

“We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 138 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It i