IMPORTANT POINT
The presumption of liability under the Negotiable Instruments Act can be rebutted by the accused through credible evidence, which was lacking in this case.

JUDGMENT

Mrs. Manjari Nehru Kaul, J. :- CRM-23423-2019

Application is allowed as prayed for and the delay of 19 days in filing the present application stands condoned.

Main case

1. Instant application has been filed by the applicant under Section 378(4) Cr.PC feeling aggrieved against the order dated 26.11.2018 passed by learned Judicial Magistrate Ist Class, Karnal vide which the accused has been acquitted of the charges framed against her.

2. As per the allegations levelled in the complaint filed by the applicant-complainant (hereinafter referred to as ‘complainant’), in the month of April, 2016, she advanced a friendly loan to respondent-accused (hereinafter referred to as ‘accused’) in the sum of Rs.2 lacs. The accused, to discharge her legal liability, issued a cheque bearing No.000006 dated 02.07.2016 (hereinafter referred to as ‘cheque in question’) for an amount of Rs.2 lacs drawn at Bank of Baroda, Karnal in favour of the complainant. However, on presentation of the cheque in question by the complainant, it was returned vide return memo dated 05.07.2016 with remarks “Opening Balance Insufficient”. The complainant thereafter sent a legal notice dated 19.07.2016 to the accused, however, despite receipt of the legal notice, the accused failed to make the payment to the complainant. Left with no other remedy, the complaint in question was then filed by the complainant.

3. After considering the material on record and evidence led by the parties, the Court below acquitted the accused by holding that the complainant had failed to prove the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) against the accused beyond the shadow of reasonable doubt.

4. Learned counsel appearing for the applicant has reiterated the allegations levelled in the complaint against the accused by asserting that an amount of Rs.2 lacs had been advanced as a friendly loan to the accused, which fact the trial Court failed to appreciate in the right perspective despite the fact that the accused did not dispute her signatures on the cheque in question and thus, a presumption under Sections 118 and 139 of Act arose in favour of the complainant. Learned counsel has further vehemently argued that the trial Court had erroneously held that the complainant did not possess the financial capacity to advance the loan in question to the accused as no evidence in support thereof had also been led. Learned counsel has still further submitted that while getting her statement recorded under Section 313 Cr.PC, the accused had merely stated that she had been falsely implicated and no challenge whatsoever had been made by her to the financial capacity of the complainant to advance loan in question. It has been further argued that in fact in the bank statement of the complainant, it stood reflected that there was a withdrawal in the sum of Rs.2 lacs on 06.04.2016. Furthermore, learned counsel has submitted that thus, it could not be said that the accused did not have any legal liability to pay the complainant, more so, when the accused had not been able to rebut the presumption under Section 139 of the Act by leading any cogent evidence in support of her defence.

5. Heard learned counsel and perused the relevant material on record.

6. No doubt, when the signatures on the cheque in question have not been disputed by the accused, hence, it would attract presumption under Section 138 of the Act, however, the said presumption is rebuttable on preponderance of probabilities. The law is fairly settled in this regard that the accused in order to prove his defence and to demonstrate that the complainant in a particular case did not have the financial capacity, can produce independent witness on his behalf or can demonstrate the same pointing to any lacuna in the material produced by the complainant himself or through a cross-examination of the complainant’s witnesses. A perusal of the material on record reveals that the complainant during he