The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof lies on the accused to provide a probable defense.

JUDGMENT

1. This present appeal has been filed under Section 378(4) of CRIMINAL PROCEDURE CODE , 1973 against the impugned Judgment dated 19.09.2022, passed by the learned Judicial Magistrate First Class, Belonia, South Tripura in N.I. 15 of 2019, whereby the learned Judicial Magistrate acquitted respondent No.1 for committing an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. The brief fact of this case is that based on a complaint filed by the complainant-appellant alleging that he is the owner of a brick kiln and also executes construction works under the Public Works Department of State of Tripura and the accused is also a fellow brick kiln owner having two brick manufacturing units one at Jirania and another at Sekerkote under West Tripura District. In the 1st week of April, 2019 the accused person at the time of sending off his migrant labourers, which were brought from outside of the State of Tripura, approached the complainant to give him a personal loan. Accordingly, the complainant gave the accusedrespondent No.1 Rs. 40,00,000/- from his bank account lying with the State Bank of India, Sabroom Branch. It is also contended that at the time of taking that loan from the complainant, the accused gave assurance to him that he would repay the same within a short period. Thereafter to discharge liability, the accused person issued two cheques bearing No. 105946 dated 20.05.2019 amounting to Rs. 20,00,000/- and another Cheque No. 105947 dated 22.05.2019 amounting to Rs. 20,00,000/-drawn on State Bank of India, ONGC Colony Branch, Agartala, West Tripura. On 18.07.2019 the complainant deposited the said cheques to his bank account in the State Bank of India, Sabroom Branch, South Tripura. Thereafter on 29.07.2019 Manager of the State Bank of India, Sarboom Branch, South Tripura returned the said cheques with remarks, "Fund Insufficient". A legal demand notice dated 12.08.2019, was sent to the accused requesting the accused person to make payment within the stipulated period from the date of receipt of said notice, but in spite of having the notice duly served upon the accused on 13.08.2019, the accused did not take any step to liquidate his liabilities by making the payments to the complainant towards the amount covered under the said cheques.

3. Accordingly, the appellant filed a complaint before the learned Chief Judicial Magistrate, South Tripura, Belonia and after taking cognizance, the learned Chief Judicial Magistrate transferred the complaint before the learned Judicial Magistrate, First Class Belonia, South Tripura, for disposal.

4. The learned Court below issued a summon upon respondent No.1 and in response to the summon, he appeared before the learned Court below. On 21.08.2021, respondent No.1 was examined under Section 251 of Cr.P.C., to which he pleaded not guilty and claimed for trial. To prove the case, on behalf of the complainant side, one witness, i.e., the complainant himself was examined as P.W.-1 and proved 7(seven) documents. On the other hand, on behalf of respondent No.1, he himself appeared before the witness box as D.W.-1 and did not produce any document. After hearing the parties, learned Judicial Magistrate First Class, Belonia, South Tripura vide impugned Judgment and Order dated 19.09.2020, acquitted respondent No.1.

5. Being aggrieved by the impugned Judgment dated 19,09.2022, passed by the learned Judicial Magistrate, 1st Class, Belonia , South Tripura in N.I. No.15 of 2019, the appellant preferred this instant appeal praying to set aside the impugned order.

6. Heard Mr. S. Lodh, learned counsel assisted by Ms. A. Saha, learned counsel appearing for the appellant as well as Mr. R. Guha, learned