The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, shifting the burden to the complainant to prove the existence of a legally enforceable debt after the presumption is challenged.

1.This application is filed challenging the judgment and order of acquittal dated 15.04.2023 passed by the learned 12th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.15252 of 2021 whereby respondent-accused were acquitted for the oiffence punishable under section 138 of the N.I.Act.

2.It is the case of the complainant that the complainant is a timber merchant and commission agent running the firm in the name of Charotar Trading Company. The accused are the directors of Hreck Engineers Private Limited and were also in the same business, therefore on placing the orders the complainant has supplied the goods of Rs.14,51,087/-. However in the table mentioned in the complaint, it is stated that the amount is Rs.24,82,660/-

goods were supplied. It is further case of the complainant that out of the aforesaid amount Rs.9,10,508/- was paid and thereafter it was conveyed that as the respondent is the limited company therefore they would pay the amount through cheque and in repayment of the aforesaid bill three cheques were issued in favour of the complainant. On depositing the said cheque, it was dishonoured with an endorsement of “Funds Insufficient”, therefore, after following the due procedure prescribed under the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”), a private complaint came to be filed before the competent Court.

2.1.To substantiate the averments made in the complaint, the complainant has examined himself below Exh.4 and has produced the 63 documentary evidences including various bills showing that goods were sold to respondent-

accused. On completion of the evidence, the statement under section 313 was recorded wherein the defence was raised by the respondent-accused that the security cheques were misused to grab more amount and false case is filed.

3.In order to prove the defence, respondent-accused has produced the statement of Bank of Baroda below Exh.107, UCO Bank below Exh.108, advance letter Exh.109 and the confirmation through email by the complainant with regard to receiving the amount of Rs.2,00,000/- below Exh.110.

4.Learned trial court after examining the evidence on record and considering the submission made by the learned advocate for the respective parties has acquitted the respondent-accused which is subject matter of challenge before this Court.

5.Heard learned advocate Mr.P.P.Majmudar for the applicant-original complainant.

5.1.Learned advocate Mr.P.P.Majmudar submits that learned trial court has committed error in shifting the onus on the complainant to prove the previous transactions by producing the bill without rebutting the presumption by the respondent-accused which is in favour of the complainant. Learned advocate Mr.P.P.Majmudar submits that learned trial court has acquitted the respondent-accused only on the ground that as per the bank statement which was produced below Exh.92, it suggests that the amount of Rs.19,46,289/- was received, though it was clarified by the complainant during his cross-examination that it was received with regard to the previous transaction. Learned advocate Mr.P.P.Majmudar submits that learned trial court did not appreciate the evidence in proper spirit and therefore, the leave as prayed for is required to be granted and appeal is required to be admitted.

6.Considering the submission made by the learned advocate for the applicant as well as on perusing the record and proceedings it transpires that in order to rebut the presumption the respondent-accused has produced the statement of bank account below Exh.94 and Exh.107 and 108. Bills which are produced in support of the complainant below Exh.47 to 73 are from 29.06.2020 to 26.10.2020 having the total amount of Rs.22,82,660/-. This entry which was produced in order to rebut the evidence i.e bills shows that the amount of Rs.19,46,289 was received during 24.08.2020 to 24.12.2020. In addition to that the confirmation e-mail which was produced by the respondent-accused below