The complainant must prove financial capacity to lend funds in a dishonoured cheque case under the Negotiable Instruments Act, and the presumption of liability under Section 139 can be rebutted by the accused.

JUDGMENT

Being aggrieved by the acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'), the complainant has challenged the order of trial Court in this appeal filed under Section 378 (4) of Cr.P.C.

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

3. It is the case of complainant that he and accused are family friends and known to each other for the past few years. Accused was visiting the house of complainant regularly. During June 2016, accused was under the severe financial constraint and caught in debt trap due to losses in the business. Therefore, he approached the complainant and requested for hand loan of Rs.6 lakhs. Taking pity and considering the long standing relationship, complainant gave hand loan of Rs.6 lakhs. Accused promised to repay the same within three months. On the same day he issued cheque dated 01.12.2016 for a sum of Rs.6 lakhs with the promise of due payment on presentation. On 03.12.2016, complainant presented the cheque through his account. On 14.12.2016, it was returned dishonoured for "Funds insufficient". Only then complainant realised that accused has issued a Non-CST cheque. He got issued legal notice dated 29.12.2016. Despite due service of notice, the accused has neither paid the amount due nor sent any reply and hence the complaint.

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

5. In order to prove the allegations against accused, complainant has examined himself as PW-1 and relied upon Ex.P1 to 5.

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

7. In fact, he has stepped into the witness box and examined himself as DW-1. Accused has relied upon Ex.D1 to 7.

8. Vide the impugned judgment and order, the trial Court dismissed the complaint, amongst other on the ground that the legal notice is not duly served on the accused and that complainant has failed to prove his financial capacity.

9. Complainant has challenged the impugned judgment and order, contending that the trial Court has gravely erred in not considering the fundamental principle of law while passing the impugned judgment and order. It has not given due consideration to Ex.P1 to 5. It failed to consider 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 in accordance with law.

10. In support of her arguments, learned Amicus Curiae for appellant has relied upon the following decisions:

(i) Bir Singh Vs. Mukesh Kumar (Bir Singh), (2019) 4 SCC 197

(ii) Rangappa Vs. Sri Mohan (Rangappa), (2010) 11 SCC 441

(iii) C.C.Alavi Haji Vs. Palapetty Muhammed and Anr (C.C.Alavi Haji), (2007) 6 SCC 555

(iv) Rajesh Jain Vs. Ajay Singh (Rajesh Jain), (2023) 10 SCC 148

(v) P.Rasiya Vs. Abdul Nazer and Anr. (P.Rasiya), 2022 SCC Online SC 1131

11. On the other hand, learned counsel for accused has supported the impugned judgment and order and sought for dismissal of the appeal.

12. Heard elaborate arguments of learned Amicus Curiae and learned counsel for respondent and perused the record.

13. Before going to the merits of the case, it is necessary to examine whether the legal notice is duly served on the accused or not. During the trial, the accused has taken up a specific defence that the notice is not duly served on him. However, he does not dispute his ad