The presumption of liability in dishonor of cheques under Section 139 of the NI Act is rebuttable, requiring the accused to provide credible evidence to challenge the presumption of a legally enforceable debt.

Judgment

Mr. Deepak Gupta, J.

Petitioner is aggrieved by the judgment dated 26.02.2016 passed in Criminal Appeal N: 62 of 2015 titled ‘Devender vs. Girraj Sharma’ by ld. Additional Sessions Judge, Faridabad, acquitting the respondent from the charges under Section 138 of the Negotiable Instruments Act, 1881 [for short ‘the NI Act’], by reversing the judgment of conviction, recorded in Complaint Case N: RBT 1429 of 2009 titled ‘Girraj Sharma vs. Devender’ by the Court of ld. Judicial Magistrate 1st Class.

2. In order to avoid confusion, parties shall be referred as per their status before the trial Court.

3. Perusal of the trial Court record reveals that complainant - Girraj Sharma (petitioner herein) sought prosecution of accused - Devender (respondent herein) under Section 138 of the NI Act, by filing the complaint in the Court of ld. JMIC, Faridabad, by alleging that accused had taken friendly loan of Rs.1,75,000/- in May 2009 for a period of one month, promising to refund the same along with interest @ 24% per month. In order to discharge his liability, accused issued account payee cheque No.344062 dated 10.06.2009 for an amount of Rs.1,75,000/- drawn on IDBI Bank Ltd. Sector 16, Faridabad, favoring the complainant. However, on presentation, the cheque was returned unpaid vide return memo dated 11.06.2009 with remarks ‘drawers signature incomplete’. Intimation was received by the complainant in this regard from his banker on 13.06.2009. Complainant then served a legal notice dated 15.06.2009 through his Advocate and sent it to the accused through registered post, asking him to make payment of the cheque amount within 15 days of the receipt of the notice. However, despite receipt of the notice, accused failed to make payment. With these allegations, complaint was filed on 30.07.2009.

4. After recording preliminary evidence, process against the accused was issued on the same day i.e., 30.07.2009. Despite service, in accordance with law, accused did not put in appearance and was ultimately declared proclaimed person vide order dated 07.03.2012. He was produced by the police before the Court of ld. JMIC, Faridabad on 19.03.2012 and was released on bail.

5. Notice of accusation was served upon the accused on 17.09.2012 under Section 138 of the NI Act, to which he pleaded not guilty and claimed trial. Complainant appeared as his own witness, faced cross-examination and concluded his evidence. Statement of the accused under Section 313 CrPC was recorded, in which he took the stand that he had borrowed only Rs.55,000/- from the complainant and that cheque in question was issued by him as a security cheque. He further stated that cheque bears his signature at one place, adjacent to the seal of Ex.C1 on the cheque. He admitted to have received the legal notice. He opted to adduce evidence in defence. Application of the accused under Section 315 CrPC to appear as his own witness was allowed and accused then appeared in the witness box as DW1 and further examined one Babu Lal as DW2 and after tendering documents Ex.D4 & D5, closed his defence evidence.

6. After hearing counsels for both the sides, Ld. JMIC, Faridabad vide judgment dated 16.01.2014 recorded conviction of the accused under Section 138 of the NI Act and vide a separate order of the even date, sentenced him to undergo rigorous impr