The burden of proving legally enforceable debt lies with the claimant, and presumption under Section 139 of the NI Act does not absolve the claimant from this obligation.

ORAL JUDGMENT

1. The present Appeal has been filed by the Appellant – Original Complainant under the provisions of Section 378 of the Code of Criminal Procedure challenging the judgment and order dated 31.03.2008 passed by the learned 2^nd Judicial Magistrate First Class, Surendranagar in Criminal Case No. 852 of 2007 whereby the Respondents herein were ordered to have been acquitted of the charge for an offence punishable under Section 138 of the Negotiable Instruments Act (“NI Act”).

2. The facts and circumstances giving rise to the filing of the present Appeal are such that; the Appellant was in the business of Betel Nuts and the present Respondent No.1 was having business relations with the Appellant and, from 5.02.2007 to 23.03.2007, the Respondent No.1 had purchased goods worth Rs.1,66,428/- from the Appellant. Out of the said amount, the amount of Rs.8382/- had been given credit by Respondent No.1 to the Appellant whereas the amount of Rs.1,58,046/- was outstanding. Upon repeated demands being made for payment of the said amount, Respondent No.2 had issued the cheque for the amount of Rs.1,57,800/- on 24.02.2007. The said cheque was deposited by the Appellant in his bank account. However, the said cheque was dishonoured. Therefore, on 3.05.2007, the Appellant had issued notice to the Respondents as regards dishonour of the cheque and asking them for payment of the amount of cheque. Since the amount of cheque was not paid by the Respondent, the Appellant filed a complaint against the Respondents for an offence punishable under Section 138 of the NI Act in the court of learned JMFC, Surendranagar.

3. After recording the verification of the Appellant, the learned Trial Court ordered issuance of process against the Respondents vide order dated 12.06.2007. The pleas of the Respondents were recorded and since they had pleaded not guilty, they were put to trial.

4. Both the sides had adduced oral as well as documentary evidence in support of their respective cases. The learned Trial Court after considering the evidence adduced on record was pleased to acquit the Respondents of the charges levelled against them vide impugned judgment and order.

4.1 Being aggrieved and dissatisfied with the same, the Appellant has preferred the present Appeal.

5. Heard learned Advocate Mr. Raxit J. Dholakia for the Appellant. He submitted that the order impugned in the present Appeal is illegal, unjust, improper and against the settled principles of criminal jurisprudence. The learned Trial Court had committed a grave error in holding that the Appellant had failed to prove that there were any legal dues from Respondent No.4 who had signed the chqeue. He submitted that as per the provisions of Section 139 of the NI Act, there is a rebuttable presumption in favour of the Appellant that the Respondent had issued the cheque in question for discharge of legally enforceable debt and it was incumbent upon the Respondents to rebut the said presumption by producing cogent material in that regard on record. The Respondents have miserably failed in doing so, and therefore, the learned Trial Court ought not to have recorded the finding that there was no legally enforceable debt due to the Appellant from the Respondents. He submitted that the cheque in question was signed by Respondent No.3, there was a clear understanding that the said cheque had been issued by him for the payment of the amount which was due to the Appellant from Respondent No.2. He also submitted that the Appellant had produced the ledger account of Respondent No.2 with his Firm which indicates that Respondent No.2 had purchased the goods in question from the Appellant which also prov