JUDGMENT

Mr. N.S.Shekhawat, J.

Challenging the correctness and legality of the impugned judgment dated 12.01.2007 passed by the learned Judicial Magistrate 1st Class, Jalandhar, whereby, the respondent has been acquitted of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the 'the Act'), the appellant/complainant has preferred the instant appeal before this Court.

2. The learned trial Court held that the respondent/accused was successful in setting up the defence that the cheque in question was not issued in discharge of legal liability and the presumption in favour of the complainant stood effectively rebutted and acquitted the respondent of the notice served upon him.

3. The complaint was filed by the appellant/complainant against the respondent/accused by alleging that the respondent had taken a friendly loan of Rs. 4 lacs from the complainant and in order to discharge his legal debt and liability towards him, the respondent issued a cheque bearing No. 755749 dated 19.01.2005 for a sum of Rs. 4 lacs drawn on State Bank of India, Harbans Nagar, Branch Jalandhar. However, on presentation, the cheque was returned dishonoured by the bank of the accused vide memo dated 01.06.2005 with the remarks "Insufficient Funds". After the dishonour of the cheque, the complainant got a legal notice dated 03.06.2005 issued through his counsel and the same was sent by registered AD/UPC on 04.06.2005 and the respondent was called upon to make the payment of the dishonoured cheque within a period of 15 days from the receipt of the legal notice. However, despite service of notice, the accused failed to make the payment of the amount of the cheque. With these broad allegations, the complaint was filed by the appellant/complainant under Section 138 of the Act against the respondent.

4. Learned counsel for the appellant vehemently argued that the impugned judgment is based on mis-appreciation of evidence and suffers from illegality and perversity. The respondent/accused had not disputed his signatures on the cheque in question and he rather admitted that he stood as a guarantor for DW2 Sanjiv Kumar and had issued the cheque in his said capacity. The learned counsel further argued that in view of the presumption enshrined in Section 118 and Section 139 of the Act, the onus to prove his innocence was to be discharged by the respondent/accused. However, the learned trial Court committed grave error by ignoring the statutory presumption and the burden was casted on the present appellant, which was apparently contrary to the statutory mandate.

5. On the other hand, the learned counsel for the respondent/accused vehemently argued that the presumption under Section 118 read with Section 139 of the Act was a presumption of law and was rebuttable presumption. The respondent, who was the drawer of the cheque, had led sufficient evidence to dispel the said presumption by leading cogent evidence. He further contended that the learned trial Court had recorded several reasons for coming to the conclusion that the cheque was not issued by the respondent in discharge of legal debt/liability and the entire story of the complainant was surrounded by a cloud of suspicion. Thus, he prayed for upholding the impugned judgment.

6. The above said presumption of law under Section 139 of the Act has been discussed in detail by the Hon'ble Supreme Court in the matter of Hiten P. Dalal v. Bratindranath Banerjeet 2001(6) SCC 16 and held as follows

'21.The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liabi