JUDGMENT

Jasjit Singh Bedi, J.

The applicant/appellant has filed the present application for grant of leave to appeal against the order of acquittal dated 12.10.2016 passed by the Judicial Magistrate, 1st Class, Kurukshetra, whereby the accused-respondent No.2 has been acquitted of the charges under sections 138 and 142 of the Negotiable Instruments Act.

2. As per the complainant/applicant-appellant (hereinafter known as the complainant), on 11.06.2013, the accused-respondent No.2 (hereinafter known as the accused) had borrowed an amount of Rs.5,00,000 from the complainant at the rate of 18 % per annum and in order to repay the same and to discharge her legal liability had issued a cheque No.226481 dated 01.08.2014 for a sum of Rs.6,05,000/- drawn at Punjab National Bank, Pipli, District Kurukshetra from her account in favour of the complainant. The said cheque came to be dishonoured on the ground of "funds dishonoured" vide a memo dated 04.08.2014. As no payment was made, a legal notice was issued to respondent No.2-accused on 07.08.2014 but despite the receipt of the same no amount was paid to the complainant. Therefore, a complaint was initiated under the provisions of the Negotiable Instruments Act.

3. In preliminary evidence, Sarita-complainant stepped in the witness box as CW1 and produced documents Ex.C1 to Ex.C6. Thereafter, she closed her preliminary evidence. The accused was summoned to face trial under section 138 of the Negotiable Instruments Act.

4. On finding a prima facie case against the accused, notice of accusation under sections 138 and 142 of the Negotiable Instruments Act, was served upon her by the Court on 20.04.2015, to which she did not plead guilty and claimed trial.

5. Thereafter, the complainant/Sarita in her evidence examined herself as CW1, Pankaj Sharma as CW2, Ramji Lal as CW3 and produced documents Ex.C7 to Ex.C9. She thereafter closed the after charge evidence.

6. The statement of the accused was duly recorded under Section 313 Cr.P.C., wherein she refuted all the allegations levelled against her and pleaded her innocence. In her defence, the accused did not examine any witnesses but produced documents Ex.D1 to Ex.D3. Thereafter, the counsel for the accused closed the evidence on behalf of the accused.

7. Based on the evidence led, the accused came to be acquitted vide judgment dated 12.10.2016 passed by the Judicial Magistrate, 1st Class, Kurukshetra.

8. The aforementioned judgment is under challenge in the present appeal.

9. The learned amicus curiae counsel for the complainant contends that the Trial Court has not properly considered the defence evidence led by the complainant. The accused was unable to rebut the presumption under the NI Act that the cheque had been issued for the discharge of a legally enforceable debt. It was thus, his contention that the appeal be allowed and the accused convicted for having committed the offences in question.

10. I have heard the learned counsel for the applicant-appellant/complainant and examined the record.

11. The accused has attempted to rebut the presumption in terms of the provisions of the Negotiable Instruments Act. It is her case that the cheque in question was issued as a security when she was working with the complainant's husband in the year 2002. In fact, she had purchased a motorcycle from the husband of the complainant and wanted to get it transferred on her name. She had availed a loan of Rs.5000/- from the complainant and her husband and by way of security had issued a cheque for Rs.5000/-. She repaid the amount but the complainant did not return the cheque stating that she (complainant-applicant) w