The complainant must prove the sale of goods and the liability of the accused beyond reasonable doubt under Section 138 of the NI Act, 1881.

JUDGMENT

Ms. Kirti Singh, J. (Oral)

The instant application seeking leave to appeal has been preferred by the complainant/appellant against the judgment dated 16.11.2018 passed by the Judicial Magistrate 1st Class, Panipat arising out of the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as the 'NI Act, 1881).

2. Briefly stated one complaint was filed under Section 138 of the NI Act, 1881 by M/s Balaji Trading Company, a proprietorship concern carrying on business of trading in towels through its proprietor Sh. Vishal Singla (hereinafter referred to as 'the complainant/appellant') stating that the accused/respondent Koushlander Gupta had purchased towels worth Rs. 18,12,400/- against invoices/bills No. 153 dated 12.11.2012, 154 dated 16.11.2012 and 156 dated 19.11.2012 (Ex. C-1 to Ex. C-3) and in discharge of the liability, he issued a post dated cheque No. 000023 dated 06.12.2012 (Ex. C-4) for Rs. 18,12,400/- on 19.11.2012 but the cheque was dishonored and returned unpaid to the complainant/appellant on 19.02.2013 with return memo Ex. C-5 bearing remarks 'account closed'. The demand notice (Ex. C-6) was sent to the accused on 23.02.2013 but the accused did not respond.

3. The complainant-Vishal Singla affirmed the allegations through affidavit Ex. CW-1/A. On the basis of material available on record, the accused was summoned to stand trial under Section 138 of the NI Act, 1881.

4. In reply to the particulars of offence stated to the accused, he pleaded not guilty and claimed trial.

5. The trial Court on 16.11.2018 acquitted the accused and held that the complainant failed to prove the sale of goods and liability of accused in respect of the alleged transactions.

6. Learned counsel for the appellant submits that the judgment passed by the trial Court suffers from grave illegality and perversity and the same is based upon surmises and conjectures and is liable to be set aside. She further submits that the learned trial Court failed to appreciate provisions of Section 138 of the NI Act, 1881 while holding that the presumption of law is that the cheque was issued in discharge over debt or other liability. Whether debt or other liability was legally recoverable or not is not a matter of presumption under Section 139 of NI Act, 1881. A bare perusal of the provision alongwith the explanation appended thereto, will go on to show that once cheque is drawn by the accused in favour of the complainant/appellant, it is drawn to discharge a debt or liability and taking into consideration the explanation of Section 138 of the NI Act, 1881 it is legally enforceable debt and liability.

7. Heard.

8. I have perused the impugned judgment carefully and have also gone meticulously through the findings by the trial Court.

9. Before adverting to the merits of the case, it would be worthwhile to have a glance on the scope in acquittal appeals. It is well settled in catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the appellate Court must bear in mind that in case of acquittal, there is a prejudice in favour of the accused, firstly the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent, unless he proved guilty by the competent Court of law, secondly the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

10. Under the criminal jurisprudence, it is the settled principle of law that the guilt of the accused should be proved beyond reasonable doubt and if the accused is able to rebut the presumption the whole burden shifts on the presumption to establish the guilt and in the present case the prosecution has failed from all corners to establish the guilt of the accused.

11. It is alleged that the accused had purchased towe