The presumption under Section 139 of the N.I. Act is rebuttable, and the evidence established a legally enforceable debt, leading to the conviction of the respondent-accused.

ORAL JUDGMENT

This appeal is filed by the appellant -complainant praying to set-aside the judgment of acquittal dated 20.03.2018 passed in C.C.No.172/2017 by the VI JMFC, Belagavi, whereunder the respondent -accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’, for short)

2. The case of the appellant –complainant’s in brief is as under:

The respondent –accused has taken a loan of Rs.3,00,000/- (rupees Three Lakhs only) on 16.11.2013 from the complainant. The respondent –accused become defaulter in paying the installments of the said loan. The total amount due as on 14.01.2016 is Rs.4,36,357/- (rupees Four Lakh Thirty Six Thousand Three Hundred Fifty Seven Only). The appellant –complainant requested the accused to make payment of loan amount. The respondent –accused has issued a cheque bearing No.212232 dated 14.01.2016 drawn on ICICI Bank, Khanapur Road, Tilakwadi Branch, Belagavi for Rs. 4,36,357/-(rupees Four Lakh Thirty Six Thousand Three Hundred Fifty Seven Only) infavour of the appellant – complainant. The appellant –complainant presented the said cheque for encashment and it came to be dishonoured for reason ”funds insufficient” in the account of accused under memo dated 18.01.2016. The appellant –complainant got issued legal notice to the respondent accused on 15.02.2016 and it has been served on the respondent –accused on 16.02.2016. The respondent – accused has not paid the cheque amount and therefore, the appellant –complainant has filed a private complaint against the respondent –accused for the offence punishable under Section 138 of the N.I Act.

3. Learned Magistrate has taken cognizance and registered C.C.No.172/2017 against the respondent - accused for the offence under Section 138 of N.I. Act. The plea of the accused has been recorded. The appellant - complainant in order to prove its case has examined witness as PW-1 and got marked documents as Exs.P-1 to P-14. The statement of accused has been recorded under Section 313 of Cr.P.C. The respondent –accused did not lead any defence evidence. The learned Magistrate after hearing the arguments on both sides, has formulated the points for consideration and passed the impugned judgment of acquittal of the respondent –accused for offence punishable under Section 138 of the N.I Act. The said judgment of acquittal has been challenged by the appellant -complainant in this appeal.

4. Heard learned counsel for appellant and learned counsel for the respondent.

5. Learned counsel for appellant –complainant would contend that the borrowing of loan of Rs.3,00,000/- (rupees Three Lakhs only) has been established by producing loan application –Ex.P7, promissory note –Ex.P8 executed by the respondent –accused and two others and withdrawing the loan amount credited to the SB account of the respondent –accused under two withdrawal slips Ex.P12 and 13. The statement of personal loan account – Ex.P10 and 11 indicate that the loan amount was due and it is higher than the cheque amount as on the date of cheque. The respondent –accused has admitted his signature on the cheque –Ex.P1. The presumption drawn under Section 139 of the N.I Act has not been rebutted by the respondent –accused. There is legally enforceable debt and for which the respondent –accused has issued cheque –Ex.P1 and it has been dishonoured for reason “funds insufficient” in the account of the accused. Inspite of issuance of notice, the respondent –accused neither replied to the notice nor paid the cheque amount within 15 days. The evidence on record will establish that the respondent –accused has committed offence punishable under Section 138 of the N.I Act. Without considering all these aspects, learned trial Judge has erred in acquitting the respondent –accused for offence punishable under Section 138 of the N.I Act. On these grounds, he prays to allow the appeal and convict the respondent –accused for offence punisha