JUDGMENT

N.S.Shekhawat, J.

CRM-18046-2022

The applicant has filed the present application under Section 5 of the LIMITATION ACT for condonation of delay of 50 days in filing the application for grant of special leave to appeal.

2. I have heard learned counsel for the applicant and perused the record.

3. For the reasons mentioned in the application, the delay of 50 days in filing the application for leave to appeal is ordered to be condoned.

Main case

4. The applicant has filed the present application under Section 378 (4) Cr.P.C with a prayer to grant special leave to appeal against the impugned judgment dated 28.01.2020 passed by the Court of JMIC, Mansa whereby, the respondent has been ordered to be acquitted of the notice of accusation under section 138 of the Negotiable Instruments Act (hereinafter referred to as the "Act").

5. The applicant/complainant had filed the complaint in the present case under Section 138 of the "Act" by alleging that the respondent/accused had borrowed a sum of Rs.4,50,000/- from him on 15.05.2016 and in discharge of legal liability, the respondent had issued cheque bearing No.480557 dated 06.06.2016 for an amount of Rs.4,50,000/-, drawn on Corporation Bank Branch Mansa, in favour of the applicant from his account bearing No.CPSB 1493 of the said bank. While issuing the said cheque, the respondent assured the complainant that the said cheque would be honoured by the banker of the respondent on presentation. When the applicant presented the said cheque to its bank, Corporation Bank, Branch Mansa on 12.07.2016, but the same was dishonoured and returned unpaid by the banker of the respondent vide memo dated 12.07.2016 with the remarks "Funds Insufficient". On receipt of the dishonoured cheque and memo of the banker, the applicant got a legal notice dated 27.07.2016 served through his counsel, calling upon the respondent to make the payment of the amount of cheque within a period of 15 days, but no effect and the applicant was constrained to file a complaint under the "Act" against the respondent.

6. After holding the trial, the Trial Court held that the applicant/complainant had failed to establish on record that the cheque in question was issued by the respondent in discharge of any legal liability. Even the transaction of the amount of loan, has alleged was not even proved and there was no existing liability.

7. Learned counsel for the applicant submitted that the respondent had not even remotely suggested to CW-1, Jugraj that a blank cheque was issued by the respondent. Even the respondent failed to send any reply to the legal notice sent by the applicant and the presumption under Section 118 and 139 of the Act could easily withdrawn and the respondent had completely failed to rebut the said presumption. Learned counsel for the applicant further submitted that since the signatures had not been disputed by the respondent, the presumption under Section 139 of the Act would operate and the respondent had failed to disprove the existence of legally recoverable debt.

8. I have heard learned counsel for the applicant and perused the record carefully; with his able assistance.

9. In fact, the law is well settled that the presumption mandated by Section 139 of the Act includes a presumption that there exists a legally enforceable debt or liability. However, the said presumption can be rebutted by the accused by leading evidence and can also be rebutted by the accused by referring to the evidence led by the complainant as well. In the present case, the case set up by the applicant was that on 15.05.2016, the respondent