A cheque issued as security does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act, and the presumption of liability can be rebutted by presenting credible evidence.

JUDGMENT

This appeal under Section 378 of the Cr.P.C. arises from the judgment and order of acquittal dated 12.06.2018 delivered in Case No.CR(NI) 11 of 2017 by the Judicial Magistrate, 1st Class, Court No.2, Udaipur, Gomati District.

02. The appellant filed the complaint which was registered as case No.CR(NI)11 of 2017, alleging that the respondent borrowed money from him on 21.11.2014 and the said money was paid to the respondent by a cheque bearing No.149938 drawn on State Bank of India, Udaipur Branch. The amount that was lent has been claimed to be Rs.2,50,000/-. The respondent needed that amount for purpose of his business, but the complainant has admitted in his complaint that the respondent is a Government employee. According to the complainant (the appellant herein), the said money was obtained as loan by exercising fraud on him. The said amount of Rs.2,50,000/- was encashed by the respondent on 24.11.2014. The said amount was collected through the respondent’s savings bank Account No.30062030020 maintained in the State Bank of India, Udaipur Branch. On several times, the complainant requested the respondent for repayment of the said loan. Finally, on 26.04.2015, the respondent issued a cheque bearing No.687209 in presence of one Sanjoy Neogi and Amal Das. In the complaint, it has been alleged that

‘At the time of issuing the said Cheque the accused person did not write the date of issue of the said cheque and requested the complainant to deposit it as and when the accused person intimate to the complainant to deposit. As per the request of the accused person, the complainant put the date on the cheque on 08.01.2017 and deposited it on 21.03.2017 to State Bank of India, Udaipur Branch through S.B account vide no.11410606413 of the complainant for encasing it. But very unfortunately the bank authority return the said Cheque on 21.03.2017 with a return memo stating that the said cheque vide no.687209 could not encash(sic.) due to fund insufficient and returned the said original cheque along with letter and reason for return to the complainant stating interalia, that due to the account found funds insufficient in the account of the accused vide No.300620030020, State Bank of India, Udaipur Branch, the said cheque was dishonoured.’

03. It has been also asserted that on 27.03.2017 the complainant (the appellant herein) issued a notice by registered post on the respondent demanding payment of the cheque amount to the extent of Rs.2,50,000/- within 15(fifteen) days from the date of receipt of the demand notice, failing which legal action would be taken against the respondent. It has been further asserted that the said demand notice was received by the respondent on 29.03.2017. It has been stated in the complaint that initially the complainant had requested the respondent to make payment of the cheque amount but he did not make any payment. Thereafter, the said notice dated 27.03.2017 was issued. But, as the respondent did not make payment of the cheque amount within the stipulated time or at all the complainant was persuaded to institute the complaint as according to him the respondent has clearly committed an offence punishable under Section 138 of the Negotiable Instrument Act. The cognizance was accordingly taken and the process was issued. The respondent denied the statement of accusation by stating that the said cheque was not issued for discharging any legally enforceable debt or liability of payment. The complainant adduced three witnesses including him and introduced 11(eleven) documents including the demand notice [Exbt.9] and the original cheque bearing No.687209[Exbt.1]. The respondent has also adduced two witnesses including him and introduced 19(nineteen) documentary evidence [Exbt.A-Exbt.S] including the reply to the demand notice [Exbt.G].

04. The trial judge after recording the evidence, examined the respondent under Section 313 of the Cr.P.C. During the said examination the respondent has clearly stated tha