The presumption in favor of the holder of a cheque under the Negotiable Instruments Act can be rebutted by the accused, shifting the burden back to the complainant to prove the debt.

ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)

NO. 16289 of 2023

1. This application is filed seeking leave to prefer an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ hereinafter) against the judgment and order of acquittal passed by the learned 3rd Additional Judicial Magistrate First Class, Bharuch in Criminal Case No.1807 of 2017 dated 07.07.2023, whereby the accused came to be acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter)

2. It is the case of the complainant that the complainant had lent an amount of Rs.50,000/- as a hand loan to the respondent-accused and for repayment of the aforesaid amount, the cheque bearing No.1807 of 2017 dated 27.11.2016 of Rs.50,000/- was issued. On depositing with the Bank, the same was dishonored with an endorsement of ‘funds insufÏcient’ and therefore, after following the due procedure under the N.I.Act, a private complaint came to be filed.

3. Heard the learned advocate Mr.Anurag Agrawal for the applicant.

4. Learned advocate Mr.Agrawal submits that the trial Court has passed the judgment and order of acquittal only believing the defence of the accused that he repaid the amount though it was denied by the complainant and not further established by the respondent-accused by way of leading evidence. Learned advocate Mr.Agrawal submits that under Section 138 of the N.I.Act when the cheque is proved and the signature is not disputed by the respondent-accused neither the demand notice was replied then the presumption, which is in favour of the complainant under Sections 118 and 139 would come into operation therefore, however, without looking to the aforesaid provisions, the judgment and order of acquittal was passed and therefore, learned advocate Mr.Agrawal prays to grant the leave to prefer an appeal.

5. Learned advocate Mr.Agrawal for the applicant submits that the learned trial Court has believed the evidence of the Branch Manager of the SBI. During his deposition the accused had tried to prove that amount was transferred, however the impugned cheque was of ICICI Bank.

6. Considering the submissions as well as the record and proceedings, it transpires from the cross examination which was conducted by the respondent-accused of the complainant, the further statement, which was recorded by the learned trial Court of the accused wherein the respondent-accused had pleaded that the amount which was in debt was already repaid and the security cheque was misused. For rebutting the presumption, which is in favour of the complainant, the cross examination was conducted wherein the complainant initially admits that prior to this complaint there was no transaction with the accused person. Thereafter, he himself admits that the amount which was repaid was for the earlier transaction, however, he denied to produce the copy of the Bank account statement of the SBI and the Andhra Bank for the period from 01.04.2015 to 31.03.2018. He also denied to produce the income tax return, Balance Sheet, account details for the period from 01.04.2015 to 31.03.2019. He further admits that on which date the cheque was given he do not recollect that date, but he states that cheque was issued in the year 2016. The Bank ofÏcer of SBI Pritamnagar, Bharuch Branch, namely, Shailendra Kashiram Gaswa was examined below Exhibit 35 by the defence to prove that debt paid, wherein during the chief examination he produced the Bank statement of SBI for the period of 01.04.2015 to 31.03.2017 and further testified that during this period from the account of the accused various amounts were transferred in the account of the complainant through NEFT. In the cross examination, the complainant could not establish any discrepancy in the evidence of the present witness.

7. Presumption which is in favour of the complainant under Sections 118 and 139 of the N.I.Act which provides as under:

“Section 118 – Presumpt