The presumption of a legally enforceable debt is rebuttable and the prosecution must prove its case beyond reasonable doubt, which was not met in this instance.

ORAL JUDGMENT

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

2. This appeal is filed challenging the acquittal order dated 15.10.2018 passed by the Trial Court in C.C.No.961/2015 for the offence punishable under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short).

3. The factual matrix of the case of the complainant before the Trial Court is that the accused is known to the complainant since ten years and he is also a family friend and on many occasions the accused had borrowed money from the complainant and repaid the same. It is the case of the complainant that in the month of April 2013, the accused approached the complainant and sought Rs.3,75,000/- for his legal necessities and assured the complainant that he would repay the amount within five months. It is the case of the complainant that the amount was lent in the month of May 2013 and the accused had promised to repay the same in the month of November 2013. When the complainant demanded to return the amount, he sought some time and in the month of December 2013, again demand was made and he started giving false reasons and that on lot of persuasion, on 10.12.2013, the accused issued a cheque dated 11.12.2013. When the said cheque was presented, the same was returned with an endorsement “insufficient funds” and hence legal notice was issued and the same was served and reply was given and hence complaint was filed and cognizance was taken. The accused was secured and he did not plead guilty and claimed trial. The complainant examined himself as P.W.1 and got marked the documents at Exs.P.1 to 8. On the other hand, the accused examined himself as D.W.1 and got marked the documents at Exs.D.1 to 7. The Trial Court having considered the material on record and having accepted the repayment of Rs.1,40,000/- and also considering the documents of exhibit ‘D’ series, particularly Ex.D.7 for having availed loan of Rs.6,40,000/- and also the document of Ex.D.1 reply, which was given immediately after receipt of the notice, comes to the conclusion that the accused was not in need of money since he was having money in his account in terms of Ex.D.7 and doubted the very availment of loan of Rs.3,75,000/- and dismissed the complaint and acquitted the accused.

4. Being aggrieved by the acquittal order, the present appeal is filed contending that admittedly there is an admission on the part of the respondent that signature and the cheque involved in the transaction belongs to the respondent. It is also the contention that the findings recorded by the Trial Court that the respondent had availed the loan of Rs.6,40,000/- on 15.03.2013 and there was no need for the respondent to avail the loan from the complainant during the month of May 2013, is erroneous. The learned counsel contend that it is the contention of the accused that he had issued two cheques while availing the loan of Rs.1 lakh and he repaid the said amount with interest and at the time of clearing the alleged loan, the appellant had only returned one cheque and another cheque and stamp paper was misused and the said defence has not been proved and in the absence of any probable evidence, the Trial Court committed an error in acquitting the respondent. The Trial Court ought to have held that the payment of Rs.1,40,000/- by the respondent to the appellant was in respect of the loan availed by the respondent on 12.01.2012 and the said payment was not in respect of the loan availed by the respondent in May 2013. The very approach of the Trial Court is erroneous, since once the cheque Ex.P.1 was admitted, ought not to have acquitted the respondent. The learned counsel subm