The case illustrates the burden of proof under Section 139 of the N.I. Act and reinforces the legal presumption concerning dishonored cheques.

JUDGMENT

This appeal is by the complainant challenging acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I.Act" for short) by the trial Court

2. For the sake of convenience, parties are referred to by their rank before the trial Court.

3. Complainant filed the complaint under Section 200 of Cr.P.C against accused alleging that he and accused are known to each other as they had financial transactions. On 20.05.2013, accused borrowed hand loan of Rs.7,00,000/- with a promise to repay the same within six months. Towards repayment of the same, he issued cheques dated 05.11.2013 for Rs.25,000/- and 30.11.2023 for Rs.6,75,000/- assuring prompt payment.

However, when he presented them for encashment, they were dishonoured for reason "payment stopped by the drawer". When complainant brought this fact to the notice of accused expressing financial difficulties, he requested representation. However, on second time also the cheques were dishonoured for the same reason. Complainant got issued legal notice dated 09.01.2014. Instead of paying the amount due, the accused has sent evasive reply and hence, the complaint.

4. After due service of summons, accused appeared and contested the case by pleading not guilty.

5. In order to prove the allegations against the accused, complainant examined himself as PW-1 and got marked Ex.P1 to 13.

6. During the course of his statement under Section 313 of Cr.P.C, accused has denied the incriminating evidence lead by the complainant.

7. Accused has stepped into the witness box and examined himself as DW-1. He has relied upon Ex.D1 to 25.

8. Vide the impugned judgment and order, the trial Court dismissed the complaint.

9. Aggrieved by the same, complainant has filed the appeal contending that the impugned judgment and order is passed by the trial Court without appreciating the evidence placed on record in right perspective. The reasons assigned are erroneous and not sustainable and it has occasioned miscarriage of justice.

9.1 The evidence placed on record clearly establish the fact that the accused has issued the cheques on behalf of his son-in-law and consequently, it ought to have held that they were issued towards legally recoverable debt or liability. The trial Court has wrongly held that complainant has changed his contention during cross-examination of accused. Having issued the cheques towards repayment of liability of his son-in-law, the accused has become the principal borrower. However, he has failed to rebut the presumption. The trial Court has erred in holding that accused has explained the circumstances in which the cheques have reached the hands of complainant. The trial Court has not taken into the consideration the admissions given by the accused during his cross-examination. Viewed from any angle, the impugned judgment and order are not sustainable and pray to allow the appeal, convict the accused and sentence him appropriately.

10. On the other learned counsel for respondent/accused supported the impugned judgment and order and sought for dismissal of the appeal.

11. Heard arguments and perused the record.

12. Thus, it is the definite case of the complainant that accused borrowed hand loan of Rs.7,00,000/- from him and issued the subject cheques towards repayment of the same and when presented for realization, they were dishonoured on the ground that there is stop payment instructions by the accused.

13. On the other hand, though accused admit that the cheques in question belong to him, drawn on his account, maintained with his banker and they bear his signature, he has denied of having borrowed hand loan of Rs.7,00,000/-