The burden of proof to establish the issuance of a cheque for the discharge of a debt or liability lies with the appellant, and the failure to produce evidence can result in the dismissal of the complaint.

JUDGMENT :

S.L. KOCHAR, J.

1. The appellant has filed this appeal, after grant of leave to file appeal against the impugned judgment of acquittal of the respondent from the charges punishable under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) passed by learned JMFC, Indore in Criminal Case No. 638/1999, judgment dated 12-7-2001.

2. The appellant/complainant filed a criminal complaint against the respondent before the trial Court alleging that respondent issued a cheque of Rs. 30,000/- dated 12-10-1995 (Ex.P.1) for payment of balance amount of purchase of non-judicial stamp. This cheque was presented for encashment before the bank on 9-4-1996. On the same day, bank returned the cheque along with memo (Ex.P.2) with endorsement of “insufficiency of fund” in the account of the respondent. Thereafter appellant sent notice (Ex.P.3) dated 15-4-1996 which was received on 10-5-1996 by the respondent. The acknowledgment is Ex.P.4. After receipt of notice within 15 days respondent did not make the payment, therefore, complaint was filed on 13-6-1996. Learned trial Court issued the notice to the respondent and respondent denied the issuance of cheque for discharge of any debt or liability. His contention was that between his father named Manikchand and husband of the appellant named Dwarakadas transaction of cash amount as well as payment through cheque was going on and simple cheque was taken by husband of the appellant. It was not given for discharge of any debt or liability. The respondent examined in total four witnesses in defence and also adduced eight documents whereas appellant examined herself and adduced seven documents to prove her case. The learned trial Court, after hearing both the parties, held that respondent tried his level best to rebut the presumption arising as per provision under section 139 of the Act and at the same time appellant failed to produce the evidence to establish that cheque was given by the respondent to her towards discharge of any debt or other liability and dismissed the complaint.

3. Learned counsel for appellant has submitted that learned trial Court has not considered the provision under section 139 of the Act which reads as under:-

“139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque of the nature referred to in section 138 for the discharge, in whole or in part of any debt or other liability.”

4. According to this provision, there is presumption in favour of the appellant unless contrary is proved by the respondent that cheque was not issued by him in discharge of any debt or liability. The learned counsel has urged that the sale register of non-judicial stamp was deposited by the appellant in the Treasury Collector of Stamp and District Registrar Office and if same was not preserved properly and produced before the Court, the appellant could not be held responsible for that and learned trial Court has not considered the evidence adduced with this regard in its proper perspective.

5. On the other hand, learned counsel for respondent has supported the judgment and finding arrived at by the trial Court.

6. Having heard the learned counsel for parties and after perusing the entire record, this Court is of the view that provision regarding presumption in favour of the appellant is rebuttable and respondent has tried his level best to rebut the same by calling the register of sale of non-judicial stamp for the period of year 1995-96 and no such register was found deposited in the Registrar Office by the appellant. Heeralal Shrivastava (DW-4) has stated specifically and also proved the documents in this regard Ex.D.2, D.3, D.4 and D.8. The respondent submitted an application for calling of the Register wherein stamp venders/appellant was mentioning the sale of non-judicial stamp. The maintenance of this register is mandatory according to the provisions of sale of non-judicial stamp and on completion of the register