The accused can rebut the statutory presumption under Section 139 of the Negotiable Instruments Act through the preponderance of probabilities by establishing that the cheque was missing and misused, and by challenging the financial capacity of the complainant to lend the alleged amount.

Judgment

This Criminal Appeal has been preferred against the judgment passed by the trial Court in C.C.No.327 of 2011 on the file of the Judicial Magistrate, Level II, Coimbatore dated 26.02.2013, whereby the accused was acquitted for offence under Section 138 of the Negotiable Instruments Act (in short, ‘the Act’).

2. The appellant/complainant lodged a complaint against the respondent/accused under Section 138 of the Act, alleging that the accused borrowed a sum of Rs.2,00,000/- on 13.09.2009 and agreed to pay an interest at the rate of 18% per month. In order to repay the said amount, the accused issued a cheque dated 15.05.2010 for a sum of Rs.2 lakhs. The said cheque was presented for collection and was dishonoured for the reason "Payment stopped by drawer". The same was intimated to the complainant. Thereafter, the complainant initiated proceedings and the complaint was taken on file.

3. In order to prove the case, the complainant examined herself as P.W.1 and marked Exs.P1 to P6. On the side of the accused, D.W.1 to D.W.3 were examined and Exs.D1 to D3 were marked.

4. After hearing the arguments and upon perusal of the materials available on record, the trial Court found the accused not guilty of the offence under Section 138 of the NI Act and acquitted him.

5. The learned counsel for the appellant submitted that the accused had admitted his signature as well as the issuance of the cheque. Therefore, the presumption under Section 139 of the Act would arise in favour of the complainant, and the complainant had discharged the initial burden required to prove the offence under Section 138 of the Act. Though the accused examined D.W1 to D.W.3, he failed to rebut the statutory presumption. However, the trial Court mechanically acquitted the accused.

6. The learned counsel further submitted that the trial Court wrongly concluded that the complainant had no source of income to lend such a huge amount as loan. The complainant had categorically deposed that she pledged her jewels and lent a sum of Rs.2,00,000/- as loan to the accused. Therefore, it was contended that the order of acquittal cannot be sustained and is liable to be set aside.

7. Heard both sides and perused the materials available on record.

8. On considering the submission made by the learned counsel on either side and upon perusal of the records, it is seen that the specific defense of the respondent/accused, who examined himself as D.W.3, was that he had been working as a goldsmith for the past 20 years and had started his own workshop in the year 2007. According to him, he had employed about 13 persons, and in fact, the husband of the complainant had worked under him. Subsequently, the two sons of the complainant also joined his workshop. The complainant had allegedly requested an advance amount for the payment of house rent. Thereafter, in the year 2009, the workshop was sold, and at that time, only 6 persons were employed under him.

8.1. The accused further deposed that after all instalment were paid, he went to his shop to collect his cheque book and the photocopy of the sale deed relating to his house, but found that the cheque book was missing. On enquiry with the sons of the complainant, he came to know about the missing cheques. Hence, he issued stop payment instructions to his banker directing the Bank not to honour the missing cheques. According to the accused, there was absolutely no money transactions between him and the complainant and the missing cheque had been misused by the complainant for initiating proceedings under Section 138 of NI Act. It is also seen that the cheque, when presented, was r