The accused is not expected to prove his defense beyond reasonable doubt and can probabilize his defense based on preponderance of probabilities.

Shri C.V. Sirpurkar, J.

1. This miscellaneous criminal case under Section 378(3) of the Cr.P.C. for special leave to appeal against acquittal is directed against the judgment dated 31.07.2012 passed by the Court of JMFC (Fast Track Court), Bhopal in criminal case No.10303/2010, whereby respondent-accused I.S. Mourya was acquitted of the charge under Section 138 of the Negotiable Instrument Act, 1881.

2. The facts necessary for disposal of this miscellaneous criminal case may briefly best a ted thus : applicant/complainant Anand Chaturvedi filed a private complaint in the Court of JMFC (Fast Track Court), Bhopal alleging that he had advance a loan in the sum of Rs. 19 lacs to the respondent/accused on 31.03.2010. The amount was withdrawn by him from his account in Punjab National Bank. The loan was to be repaid in July, 2010. The respondent accused gave him a cheque in the sum of Rs. 19 lacs drawn on Oriental Bank of Commerce, Arera Colony Branch, Bhopal, payable on 30.07.2010. He presented the cheque in the bank for encashment but it was dis-honoured for want of funds. Even after giving statutory notice, no repayment was made by the respondent/accused. Thereafter, he filed a private complaint under Section 138 of the Negotiable Instrument Act, 1881, within limitation.

3. In his examination under Section 315 of the Cr.P.C., respondent-accused admitted that he had given cheque No.463774 in the sum of Rs. 19 lacs drawn on B.H.E.L. Branch of Canara Bank, Bhopal, dated 30.07.2010; however, his defence was that the cheque was given not for discharge of any debt or liability but by way of security in respect of transaction of sale of land. The applicant/complainant had agreed that the cheque would not be deposited in the bank for encashment and had given such assurance in writing; however, applicant/complainant deceitfully deposited the cheque in the bank for encashment.

4. After trial, learned Magistrate held that the complainant has not been able to prove that he had advanced loan in the sum of Rs. 19 lacs to the accused and the cheque in question was given to the applicant/complainant in discharge of aforesaid debt. It was further held that on the basis of the admission made by the complainant in his cross-examination and on the basis of statements of defence witnesses Mohsin Hasan (DW/1), Devendra Kumar (DW/2) and the document (Ex.D/2), the accused was able to rebut the presumption arising in favour of the complainant under Section 118 and 139 of the Negotiable Instrument Act and was able to probablize his defence that the cheque in question was in fact given by way of security in respect of transaction of sale of immovable property between the parties.

5. Aforesaid findings recorded by the learned Magistrate have been assailed before this Court on behalf of the applicant/complainant mainly on the ground that the document (Ex.D/2) was in fact a draft, which was cancelled and in its place document (Ex.P/9) was executed. It has also been argued that the respondent-accused has failed to examine himself in support of his defence.

6. Learned counsel for the respondent-accused, on the other hand, has supported the impugned judgment.

7. In the case of Kumar Exports v. Sharma Carpets, (2009) 3 MPLJ 114, the Supreme Court has observed that:

“Presumptions under sections 118 and 139 of the act are rebuttable and will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. The presumption is displaced where the complainant himself made declaration to Sales Tax Department that no sale had taken place and having accepted the testimony of the official, it is evident that no transaction of sale had taken place. Thus the offence under section 138 not held to be proved against accused.

The Court went on to observe furt