The burden of proof lies on the complainant to establish the issuance of the cheque in discharge of a legal debt, and the presumption can be rebutted by producing evidence to the contrary.

ORDER :

Vivek Rusia, J.

1. This is a petition filed u/s. 378(4) of the Cr.P.C. seeking leave to file an appeal by the applicant/complainant against the judgment dated 13.3.2020 passed by learned Judicial Magistrate, First Class (JMFC), Indore in Complaint Case No. 36992/2016 whereby the respondent/accused has been acquitted from the offence u/s. 138 of the Negotiable Instruments Act.

2. Facts of the case, in short, are as under:

The applicant and respondent are close friends, relatives and belong to one community. By virtue of the relation between them, the respondent sought financial support from the complainant and according to the applicant/complainant, he gave a friendly loan of Rs. 7.00 lakhs in various instalments to the respondent from the period 17.11.2014 to 17.4.2016. After some time when he demanded the amount from him, the respondent issued Cheque No. 060922 dated 2.6.2016 of Rs. 7,00,000/-. The applicant presented the said cheque in his Bank Account in Allahabad Bank, Kanadia Branch, Indore, but the said cheque has been returned with a note dated 16.6.2016 that the amount in the Bank Account of the respondent is insufficient.

The applicant served the legal notice through his counsel 4.7.2016 by registered post which was received by the respondent on 19.7.2016 and when the amount was not paid up to 3.8.2016, the complainant has filed the complaint on 23.8.2016 against the respondent.

The respondent appeared and abjured his guilt and pleaded for the trial. Learned JMFC framed four issues for adjudication.

The complainant examined himself as P.W. 1 and got exhibited legal notice dated 4.7.2016 as Exb. P/1, Registered A/D slip as Exb. P/2, acknowledgement as Exb. P/3, Cheque No 060922 as Exb. P/4, return memorandum as Exb. P/5, Passbook of Allahabad bank as Exb. P/6, Passbook of joint account as Exb. P/7, Photocopy of dairy as Exb. p/8 to 14 and Rin Pustika as Exb. P/15.

The respondent examined himself as D.W. 1. and got exhibited legal notice dated 19.9.2018 as Ex. D/1; reply dated 6.10.2018 as Ex. D/2; and agreement in respect of the sale of agricultural land as Ex. D/3. He came up with the defence that he mortgaged his agricultural land to the complainant in the year 2013 and took a loan which he had repaid in 2014. The mortgage-deed was executed in a 100/- stamp paper and at the time of execution of mortgage-deed he gave a blank cheque to the complainant. The said deed and the cheque were in possession of the complainant. Within a year he had returned the amount of Rs. 1,36,000/- to the complainant and despite that he did not return the blank cheque and presented in the Bank and now the complaint has been filed against him.

After appreciating the evidence came on record, learned JMFC has held that though the respondent has admitted his signature in the cheque and there is a presumption against him, but the such presumption is rebuttable and the respondent has validly proved his innocence. Hence, vide judgment dated 13.3.2020, learned JMFC has dismissed the complaint and discharged the respondent from the charge u/s. 138 of the Negotiable Instruments Act. Hence the present petition seeking leave to file an appeal before this Court.

3. Shri Rathi, learned counsel appearing for the applicant submits that once the respondent has admitted his signature in the cheque (Ex. P/4), then there is a presumption in respect of issuance of the cheque in discharge of legal debt. The complainant has filed the Bank statement to show that on various dates amounts were paid to him after withdrawal from the bank. The complainant has got exhibited his diary as Ex. P/8 in which he has made an entry of payment made to the respondent on various dates. Therefore, the learned JMFC has erred in dismissing the complaint and discharging the respondent. Learned counsel further submits that photocopy of the mortgage-deed has wrongly been admitted in the evidence. Hence the leave may kindly be granted to the applicant to file an appeal.

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