The presumption under Sections 118(a) and 139 of the Negotiable Instruments Act does not absolve the complainant from proving the existence of the loan beyond reasonable doubt.

JUDGMENT & ORDER [ORAL]

1. Heard Mr. Ratan Datta, learned Public Prosecutor and Mr. R. G. Chakraborty, learned counsel appearing for the respondents.

2. This criminal appeal has been filed under Section- 378(2) of the Code of Criminal Procedure is directed against the judgment and order dated 04.01.2021, passed by the learned Additional Chief Judicial Magistrate, West Tripura, Agartala in connection with Case No. N.I. 309 of 2014, whereby and whereunder, the learned Court below acquitted the respondent No.1 for committing offence punishable under Section-138 of Negotiable Instrument Act, 1881.

3. The prosecution story, in brief, is that the respondent-accused No.1 had issued a cheque bearing No.153014 dated 11.09.2014 drawn on Stae Bank of India, Agartala Bazar Branch amounting to Rs.10,00,000 in favour of the complainant-appellant herein for discharge of her debt from her account No.30283542935 and the complainant had presented the said cheque in U.C.O Bank, Agartala Branch on 12.09.2014 but the said cheque was bounced on 15.09.2014 unpaid due to refer to drawer. Thereafter, the complainantappellant herein, had informed the respondent-accused person about the returned of her cheque while the respondent-accused then requested the complainant to deposit the same after few days.

4. The appellant-complainant had deposited the said cheque in pursuance of the request of the respondent-accused on 15.10.2014 for encashment but the said cheque again returned for the reason D.P. Nil on 17.10.2014 by the State Bank, Bazar branch. The complainant-appellant and the respondent-accused are both businessman for which there was cordial relationship and intimacy exists amongst them. The respondent was the owner of Saha Udyog in which she holds the Hotel Business and another grocery business and the relations stated about and the problem with the respondent accused had caused the appellant complainant to give loan to the respondent.

5. Subsequently, the complainant-appellant cause legal notice to the accused on 22.10.2014 by registered post at residential address and business center of the respondent-accused. Thereafter, the accused did not give any reply and not paid the money cover under the cheque, thereby the respondent has committed the offence punishable under Section-138 of Negotiable Instrument Act. After compliance required mandatory provision filed the present complaint.

6. After receipt of the complaint, the then Presiding Officer took cognizance of offence recorded the sworn statement. Since made out prima facie case to proceed against the accused for the alleged offence got issued process. In response to the summons, the respondent-accused appeared through his counsel and obtained the bail. Thereafter, accusation was read over and explained to her, she denied the same and claimed to be tried.

7. The complainant in order to prove its case examined himself as PW-1 and produced another witness who is examined as PW-2 namely, Sri Sanjit Banik. The PWs.1&2 were subjected for cross-examination by the counsel for the accused. After closure of the complainant's evidence, statement of accused was recorded under Section-313(1) (b) Cr. P.C. but, the accused denied straightway the evidence led by the complainant and chosen to lead evidence and examined herself as DW-1.

8. After hearing the parties and perusal of the evidence on record, the learned Court below has observed as under:

'In the result, thereof, the accused person namely Sujata Saha is acquitted of the offence under U/S138 of the Negotiable Instruments Act, 1881 and set at liberty fortwith.'

9. Being aggrieved by and dissatisfied with the impugned judgment and order of acquittal, the appellant herein, has preferred this appeal before this Court for ends of justice.

10. The core issue in this case is left out "whether the cheque in question can be said to have been issued in discharge of enforceable debt or liability. On recapitulation, the facts and evidence, the accused admitted having drawn