Presumption under Section 139 NI Act shifts burden to accused to rebut by probable defence; trial court erred in requiring complainant to prove debt, rendering acquittal perverse in appeal.

JUDGMENT :

RAKESH KAINTHLA, J.

1. The present appeal is directed against the judgment dated 31.12.2012, passed by learned Judicial Magistrate First Class, Solan, District Solan, H.P. (learned Trial Court) vide which the respondent (accused before the learned trial court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint against the accused before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused was dealing in the business of the sale and supply of surgical and other items. He used to borrow money from the complainant to augment his business. The accused had assured the complainant that he would set up an industry at Baddi in partnership with the complainant. The complainant later on found that the accused was facing financial difficulties, hence, he requested the accused to return the borrowed amount. The accused issued a cheque of Rs.2,50,000/- drawn at Baghat Urban Cooperative Bank Limited on 15.04.2010 to discharge his liability. The complainant presented the cheque to his bank, but it was returned with the endorsement ‘funds insufficient’. The complainant issued a legal notice to the accused asking him to repay the amount. The notice was served upon the accused on 18.05.2010. The accused failed to repay the amount and sent a reply on 04.06.2010 denying the contents of the notice and claiming that a blank signed cheque was taken by the complainant as security. This plea was false as no blank signed cheque was obtained by the complainant from the accused. Hence, it was prayed that an action be taken against the accused as per the law.

3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW1) and Ajay Sharma (CW2) to prove his complaint.

5. The accused, in his statement recorded under Section 313 of Cr. P.C. admitted that he had received a notice and sent its reply. He claimed that the cheque was forged by the accused. He stated that he wanted to lead the defence evidence, but his learned counsel said subsequently that no evidence was to be led.

6. Learned Trial Court held that the complainant had failed to prove that the cheque was issued to discharge the debt/legal liability. The complainant asserted that the accused had borrowed money from him from time to time. He had not specified the amount advanced by him, the date, the month or the year of the transactions. He stated in the cross-examination that the accused had borrowed Rs.15 lakhs from him, but the cheque was issued for Rs.2,50,000/-. The cheque contains a presumption, but the presumption is rebuttable, and the cross-examination of the complainant was sufficient to reb