The presumption under Section 139 of the N.I. Act regarding cheques issued for legally enforceable liabilities is rebuttable, but the burden lies on the accused to prove otherwise.

ORAL JUDGMENT

Both appeals are filed by the complainant challenging the judgments of acquittals passed in C.C.No.13139/2012 and C.C.19531/2012 by the XXII Chief Metropolitan Magistrate, Bengaluru, wherein the respondent –accused has been acquitted for offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for brevity).

2. The case of complainant’s in both criminal cases in brief is that

The respondent –accused is his friend and he is land developer and use to form layout and sell the same to the intending purchasers. For formation of the layout and development the respondent –accused was in need of money and for that he requested the appellant – complainant to invest money and for that he has get site measuring 60 x40 ft in the layout to be formed by the respondent –accused. Considering the same, the appellant –complainant agreed and gave Rs.5,00,000/- on 31.10.2007 and the respondent –accused executed sale agreement dated 31.10.2007. It is further case of the complainant that thereafter, the complainant has pad Rs.3,00,000/- on 15.01.2008, Rs.1,00,000/- on 24.04.2008, Rs.3,00,000/- on 18.07.2008, Rs.1,00,000/- on 22.10.2008 and Rs.3,00,000/- on 25.01.2009 and endorsement has been made on the back of the first page of the sale agreement by the accused for having received the said amount. It is further case of the complainant that accused did not form the layout and therefore, he agreed to return the amount given by the complainant in sum of Rs.16,00,000/- along with compensation /interest of Rs.7,50,000/-. In that regard the respondent –accused has issued seven cheques, details of which are as under:

The complainant presented all those seven cheques for encashment and they came to be dishonoured for the reason “insufficient funds”. The complainant got issued legal notice to the respondent –accused demanding to pay cheques amount. Inspite of service of notice the respondent –accused has neither paid cheques amount nor issued any reply to the notice. Therefore, the appellant - complainant has filed two complaints one in respect of six cheques total amount of Rs.16,00,000/- and another in respect of one cheque for a sum of Rs.7,50,000/-.

3. Learned Magistrate took cognizance and registered case in C.C. No.13139/2012 and C.C. No.19531/2012 against the respondent –accused for offence punishable under Section 138 of N.I. Act. The plea of the respondent –accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked documents as Ex.P1 to P8 in C.C.No.13139/2012 and Ex.P1 to P18 in C.C.No.19531/2012. The statement of respondent - accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused did not choose to lead defence evidence. Learned Magistrate after hearing on both sides has formulated points for consideration and passed impugned judgments of acquittal. The said judgments of acquittal passed in both cases have been challenged by the complainant in these two appeals.

4. Heard learned counsel for the appellant and learned counsel for the respondent in both appeals.

5. Learned counsel for the appellant –complainant would contend that the appellant –complainant has invested Rs.16,00,000/- for allotment of a site in the layout to be formed by the respondent –accused and in that regard the respondent –accused has executed the sale agreement dated 31.10.2007. The respondent - accused did not form the layout and therefore, he agreed to refund the amount invested by the appellant – complainant in sum of Rs.16,00,000/- and Rs.7,50,000/- as compensation /interest. He submits that in that regard he issued seven cheques. The signature on the said