IMPORTANT POINTS
(1) It would not be open to High Court to set aside acquittal, unless judgment of acquittal under appeal appears to be perverse, or based on mis-appreciation of evidence.
(2) Burden to rebut presumption under S. 139 NI Act, on accused.

Vipin Sanghi, J.—The present leave petition has been preferred under Section 378(4) Cr.P.C. to seek leave to appeal against the judgment dated 03.07.2014 passed by the learned Metropolitan Magistrate-04 Dwarka Courts, New Delhi in CC No. 1884/1/12 – a complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act (the NI Act) titled ‘Lekh Raj Sharma vs. Yashpal Gupta’. By the impugned judgment, the learned MM has acquitted the respondent/accused of the alleged offence. After hearing the learned counsel, the Court was inclined to grant leave and with consent of learned counsel, heard their argument on the appeal and reserved judgment. Accordingly, the Registry is directed to register and number the criminal appeal.

Crl. Appeal No. …………………./2015

2. The case of the complainant-appellant, as narrated in the complaint, is that the complainant and accused have known each other for the last about 40 years and have had close friendly relations with each other. The accused had a manufacturing unit and was carrying on the business in the name of Yash Engineering, being a proprietary firm of the accused. The accused started facing some financial crisis in his business and the complainant came forward to help him.

3. In the month of April, 2011, the accused urgently needed money and approached the complainant with a request to arrange Rs. 4 lacs, which he promised to return after a few months. The complainant arranged the sum of Rs. 4 lacs and gave it to the accused. The accused returned the same in the month of April, 2012. The accused again requested the complainant to arrange an amount of Rs. 4.50 lacs, for his business. The amount of Rs. 4.50 lacs was given by the complainant to the accused, who executed a pronote dated 15.05.2012 and promised to pay interest @ 1.5% p.m. The accused again approached the complainant in July, 2012 to arrange a further loan of Rs.4 lacs. Accordingly, the complainant arranged a loan of Rs. 4 lacs from his sources. The accused executed a pronote dated 20.07.2012 after receiving the said amount and agreed to pay interest @ 1.5% p.m. The accused even paid the interest, however, only till the month of August, 2012.

4. In the first week of September, 2012, the complainant requested the accused to return the entire amount given to him as it was required for the marriage of his son in November, 2012. The accused could not arrange the amount immediately. However, he gave a post dated cheque of Rs. 8.50 lacs bearing no. 81582 dated 17.09.2012 drawn on Canara Bank, Rajouri Garden, New Delhi with an assurance of its encashment, as by that time, he shall be able to arrange the funds in his account. When the cheque was to be presented on due date, the accused requested the complainant not to present the same as he could not arrange the funds and requested the complainant to present the cheque in the first week of November, 2012. On 07.11.2012, the complainant presented the cheque in his account maintained with Indian Overseas Bank, Dwarka. The said cheque was returned on 12.11.2012 vide bank memo dated 09.11.2012 with the remarks ‘insufficient funds’. The complainant approached the accused and apprised him about the dishonoured cheque and requested him to immediately arrange the funds for his urgent needs. The accused, however, returned only Rs. 50,000/- to the complainant.

Despite his promises, the accused failed to repay the entire loan to the complainant. On 15.11.2012, the complainant went to the residence of the accused, but he avoided meeting the complainant. Thereafter, the complainant sent the demand notice dated 17.11.2012 through his advocate demanding Rs. 8 lacs. The aforesaid notice was received by him, but neither any reply was sent, nor the money was repaid. Hence, the present complaint was filed under Section 138 of the Act.

5. Pre-summoning evidence was led by the complainant and cognizance was taken against the accused vide order dated 19.12.2012. On the basis of the prima f