Under Sections 138 and 139 of the N.I. Act, the court must raise a presumption of liability when the fact of cheque bouncing is prima facie established. The accused can rebut this presumption by leading evidence, but the burden of proof is on the accused. The court should not shift the burden of proof onto the complainant.

Sudhir Kumar Saxena, J. –

This criminal appeal filed under Section 378(4) Cr.P.C. is directed against the judgment and order dated 22.9.2009 passed by Chief Judicial Magistrate, Sultanpur acquitting accused Om Prakash Shukla of the charges framed under Section 138 N.I. Act ('Act' in short).

2. I have heard Sri S.K. Mehrotra, learned counsel for appellant and Sri Jyotindra Misra, Senior Counsel for respondent-accused and gone through the record.

3. Prosecution case apparent from complaint and statements under Section 200/202 Cr.P.C. in brief is that Udai Shanker Misra appellant filed a complaint before Chief Judicial Magistrate, Sultanpur under Section 138 of the N.I. Act alleging that Om Prakash Shukla was granted license for running diesel-petrol outlet from Bharat Petroleum. Since he was short of the fund, sought financial help from complainant as his father Sri Shyam Narain Misra had recently retired from UCO Bank as Assistant Manager under voluntary retirement scheme. He had received Rs. 20,00000/- on retirement. Sri Shukla persuaded complainant's father who agreed and extended financial help to the tune of Rs. 16,00000/-, he executed a written-note on 19.10.2001 on a stamp paper of Rs. 100/- expressing commencement of partnership business with the complainant. Partnership deed was also executed on 10.2.2003 duly verified by Sudhakar Misra, Notary, along with two witnesses, namely, Ashok Kumar and Prem Lal Srivastava, Advocate. It was agreed that Om Prakash Shukla would be partner of 51% and Udai Shanker Misra of 49%. Since for sometime nothing was paid despite repeated protests, accounts were finally settled on 30th March, 2005 and accused gave banker's cheque of Rs. 3,95,575/- towards complainant's share in the profits and unilaterally dissolved the partnership. He also executed another cheque for Rs. 16,00000/- which was principal amount advanced by complainant's father. These cheques were presented by complainant before State Bank, Kurebhar on 26.4.2005. First cheque was dishonoured on account of insufficiency of funds, while another cheque for Rs. 3,95,572/- was returned unpaid under the instructions of 'stop payments'. Thereafter complainant gave a written notice on 10.5.2005 as required under Section 138 of N.I. Act. Despite notice, an evasive reply was sent by respondent stating that both the cheques were not issued by him. Non-payment of cheque led to cause of action, hence complaint.

4. After recording statements of complainant, Shyam Narain and Ashok kumar under Sections 200 and 202 Cr.P.C., accused was summoned. Accused did not plead guilty, hence under Section 254 Cr.P.C. Complainant examined himself as P.W.1, his father Shyam Narain Misra as P.W.2 and Prem Lal Srivastava as P.W.3, no other witness was examined.

5. Accused neither appeared himself as witness nor examined any witness in his defence.

6. Chief Judicial Magistrate, Sultanpur held that complainant has failed to prove his case and she acquitted the accused vide her judgment and order dated 22.9.2009 which is impugned in this appeal.

7. Submission of Sri S.K. Mehrotra, learned counsel is that trial court has committed gross error of law by shifting burden of proof on complainant. He relied on certain decisions which will be discussed later on.

8. Section 118 of N.I. Act contemplates presumption in respect of Negotiable Instruments. Section 138 provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, on account of insufficient fund etc. will be deemed to have committed offence. Section 138 despite notice makes non-payment of amount of cheque, a criminal liability and provides maximum punishment of 2 years imprisonment or fine or both. Section 139 which is also relevant envisages presumption for discharge of debt or liability if cheque