The issuance of a cheque creates a presumption of debt, which the accused must rebut with evidence, failing which the acquittal of the accused is unsustainable.

Appellant/complainant feeling aggrieved by judgment of Trial Court on the file of Civil Judge and JMFC, Laxmeshwar sitting at Shirahatti in C.C.No.493/2020 dated 28.10.2022 preferred this appeal.

2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

3. Heard the arguments of both sides.

4. After hearing the arguments of both sides and on perusal of the records, so also the impugned judgment under appeal, the following points arise for consideration:

(i) Whether the impugned judgment of Trial Court in acquitting the accused for the offence under Section 138 of N.I. Act is perverse, capricious and legally not sustainable? (ii) Whether interference of this Court is required?

5. On careful perusal of oral and documentary evidence placed on record, it would go to show that the accused was working as sub-contractor under Gopalkrishna contractor. The main contractor Gopalkrishna had taken contract work for construction of Government Degree College at Kundagol and Annigeri under whom the accused was working as sub-contractor. Complainant was hired by the accused for centering, bar bending and goundi work for construction of Government College at Kundagol and Annigeri. Complainant has accepted the work of accused at the rate of Rs.200 per sq.ft. for college building work at Kundagol and Rs.210 per sq.ft. for the college building construction at Annigeri and total amount of both work was Rs.21,75,870/-. Accused has paid Rs.16,05,870/- from time to time and due to the tune of Rs.5,70,000/-. 5(a). Accused in order to discharge the legally enforceable debt issued cheque bearing No.000180 drawn on ICICI Bank, Hosakeri Branch for Rs.5,70,000/- dated 03.02.2020 Ex.P.1. Complainant presented the said cheque for collection through his banker State Bank of India, J.T.Matt Road, Gadag and the same was dishonored as ‘refer to drawer’ vide bank endorsement Ex.P.2. Complainant issued demand notice through RPAD dated 27.02.2020 Ex.P.3. Postal receipt for having sent the demand notice through RPAD is produced as EX.P.4 and the demand notice is duly served to the accused vide acknowledgment card Ex.P.5. The accused is registered as construction worker as per the card issued by the Department Ex.P.6 and the family particulars Ex.P.7. The notebook is produced at Ex.P.8. If the aforementioned documents are perused and appreciated with the oral testimony of PW.1, then it would go to show that complainant has complied all necessary legal requirements in terms of Section 138 (a) to (c) of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’ for the sake of brevity). Thereafter, the complainant has filed the complaint on 19.05.2020 within a period of one month from the date of accrual of cause of action.

Therefore, statutory presumption in terms of Sections 118 and 139 of N.I. act will have to be drawn in favour of complainant.

6. In this context of the matter, it is useful to refer the judgment of Hon'blel Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945 , wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given by view of security and same has been misused by complainant is not tenable.

7. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131 , wherein it has been observed and held that:-

"Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 o