JUDGMENT

VIKAS MAHAJAN, J. (ORAL)

1. The leave to appeal was granted by this Court vide order 12.04.2019 under Section 378(4) CrPC against the impugned judgment dated 19.12.2023 whereby the complaint of the appellant was dismissed and the respondent/accused was acquitted of the offence under Section 138 of the NI Act.

2. The complaint was filed by the appellant under Section 138 of NI Act alleging that he is engaged in the business of manufacturing of polythene bags and tubes and printing on the same. The respondent Ashwani Sharma is stated to be the proprietor of M/s Sidh Polywraps and is stated to be engaged in the business of polybags and tubes.

3. It was further alleged in the complaint that to meet the requirements of his business respondent/accused used to take raw materials from the appellant/complainant on credit basis from time to time. The respondent/accused issued two cheques – first bearing no. 654461 dated 10.09.2004 for an amount of Rs.10,000/- and the second cheque no. 620794 dated 01.02.2005 for an amount of Rs. 2 lacs, both drawn on Bank of India, Okhla Industrial Estate Branch, New Delhi, in discharge of his liability.

4. The appellant/complainant presented the said two cheques in his bank. The cheque bearing no. 654461 was returned unpaid with remarks "refer to drawer" and the cheque bearing no. 620794 was returned unpaid with remarks "funds insufficient".

5. The appellant issued legal notice dated 04.03.2005 to the respondent through registered post and despite service of the said legal notice, the amount of the cheque was not paid by the respondent, therefore, the complaint under Section 138 of NI Act came to be filed by the appellant against the respondent.

6. Notice was framed in the case and the appellant/complainant produced himself as CW-1 and tendered his affidavit in evidence Ex. CW1/A. Thereafter, he was cross-examined and was discharged. Appellant/complainant also produced Sh. Gulshan Rai, Computer Operator in Bank of India, as CW2, who was examined and cross-examined.

Thereafter, the appellant/complainant closed his evidence.

7. In support of his defence, the accused examined himself as DW-1, as well as, Sh. Arvind Kumar Rajak, Clerk of Bank of India, Okhla Industrial Estate Branch as DW-2.

8. During his cross-examination, DW-1 deposed that the bank account maintained by the respondent/accused with the Bank of India was closed in the year 2004 after the manufacturing business of plastic was closed in the year 2002-2003. Incidentally, the cheques in question were presented in the year 2005.

9. The statement of the respondent/accused was thereafter recorded under Section 313 CrPC read with Section 281 CrPC. In his said statement, he stated that – (i) the cheques in question were not given by the respondent/accused but rather the same were removed from his office by the complainant, (ii) the respondent/accused has no liability toward the complainant, and (iii) the complainant used to take goods from the respondent/accused and the cheques in question have been filled by the complainant himself and he identify the complainant’s handwriting.

10. After sifting the evidence, the learned Trial Court recorded a finding that since the signatures on the cheques are admitted by the respondent/accused, therefore, the presumption under Section 138 of NI Act will arise.

11. The learned Trial Court noted that the respondent/accused deposed that he himself used to supply material to the complainant against bills and the complainant used to issue cheques to him. He produced the ledger book maintained by him Ex. AW1/1 and also produced reply dated 18.03.2005 Ex. AW1/1 to the legal notice dated 04.03.2005. Even the complainant in his cross-examination admitted that accused used to sell goods to him. Thus, the Court observed that the accused has been able to probabilize his defence.

12. The learned Trial Court also noticed that the complainant/CW1 during his cross-examination admitted that he did not place any bill on record for