Appellant – original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment of acquittal passed by the learned JMFC, Borsad on 27.9.2010 in Criminal Case No.2024 of 2007 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, accused was his friend and as he was in need of finance, demanded Rs.1,85,000/-. Therefore, he gave Rs.1,85,000/- to the accused, who gave cheque No.018832 dated 14.8.2007 for Rs.1,85,000/- drawn on Punjab National Bank, Anand branch. On presenting the said cheque in the bank, it returned unpaid with the endorsement “Insufficient Funds”. Therefore, notice through advocate was served to the accused. The accused gave evasive reply to the notice and did not pay the unpaid cheque amount. Therefore, the complainant under section 138 of the Act was filed.
3. The trial Court issued summons. Pursuant to the summons, the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, trial Court explained to the accused the incriminating circumstances appearing in the evidence against him. The accused in his further statement recorded under section 313 of the Code explained that cheque has been misused. The accused also stated that he has filed written statement, but on perusal of record, no such written statement was found. After hearing the learned advocates for the parties, the trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned learned advocate Mr. Joshi for the appellant, learned advocate Mr. Parekh for the respondent accused and learned APP Miss Shah for the State.
5. Learned advocate Mr. Joshi submitted that the cheque in question was given by the accused towards discharge of his liability and under section 139 of the Act, the accused is required to rebut the presumption that it was not given towards discharge of liability. He also submitted that the account abstract Exh-36 was admitted by the accused, which indicates that the amount was given to the accused, but the accused failed to rebut the presumption and therefore, the complainant proved that the cheque was given towards discharge of liability. He also submitted that on dishonour of the cheque, the complainant served a notice as required, which was received by the accused, who gave an evasive reply. Hence, all the requirements of section 138 of the Act are satisfied. Therefore, learned Magistrate committed error in acquitting the accused.
6. Learned advocate Mr. Parekh submitted that except bare words, no evidence is produced to show that amount was advanced to the accused and there are contradictions in the complaint, oral deposition and notice of the complainant. He also submitted that though the notice indicates that Promissory Note was executed and the amount was advanced in presence of a witness, neither Promissory Note was produced nor the witness was examined. He also submitted that the complainant has misused the cheque which was given in earlier transactions. He further submitted that by cross examining the complainant, the accused was able to rebut the presumption, but the complainant failed to prove legally recoverable debt. Therefore, the trial Court was justified in acquitting the accused. Hence, no interference is warranted in the impugned judgment.
7. Under section 139 of the Act, it shall be presumed that holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability unless the contrary is proved. It is settled proposition that when an accused has to rebut the presumption, the standard of proof for doing so is that of “Preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence, which creates doubt about the existence of a legally recoverable debt or liability, the prosecution can fail. It is not necessary that in order to rebut the presumption, accused is required to step into witness box or lead evidence. The accused can rely upon on the materials submitted by the complainant in order to raise such defence. The presumption raised does not extend to the extent that the cheque was issued for discharge of any debt or liability, which is required to be proved by the complainant. When an accused is able to raise a probable defence, the burden shifts on the complainant to prove that cheque was given towards discharge of legally recoverable debt or liability.
8. In view of above settled position, evidence is required to be examined in this case. The trial Court has acquitted the accused on the ground that the complainant failed to prove existence of legally recoverable debt. In order to prove its case, the prosecution examined complainant Bipinchandra Mohanbhai Shah Exh-12. In the cross examination, the witness deposed that he maintains Books of Account. The witness admitted that notice Exh-23 was given as per his instructions. The witness also deposed that the accused did not take any amount from him earlier nor purchased any goods from his shop and the amount given to the accused is debited in the account. The witness also deposed that his Books of Account are certified by the income tax department and is prepared to produce the same in the Court. The witness also admitted that he is aware that any transaction above Rs.25,000/- is to be made through cheque under the provisions of the Income Tax Act. The witness also admitted that except signature in cheque Exh-19, other details are not in the handwriting of the accused and also admitted that no interest was to be paid by the accused. The witness also admitted that the transaction took place in presence of Niyamatkhan and it is true that the accused executed a Promissory Note.
9. The prosecution produced notice given by the complainant at Exh-23 and reply to the notice given by the accused at Exh-27. The prosecution also produced abstract of daily ledger at Exh-36.
10. It appears from the notice Exh-23 that on return of the cheque unpaid, the complainant gave a notice demanding the unpaid cheque amount. The complainant alleged in the notice that the amount was given in presence of Niyamatkhan Pathan, and the accused executed a Promissory Note. In the reply to the notice Exh-27, the accused disputed these allegations and stated that the complainant is doing the business of lending money and since last three years, he was taking money on interest and his signatures were obtained on blank Promissory Note. In view of this notice correspondence, it emerges that the alleged amount was advanced in presence of a witness, and the accused executed a Promissory Note. The evidence of the complainant also indicates that account was maintained in the Books of Account and the amount advanced to the accused was reflected in the account. It is not in dispute that the prosecution neither produced Promissory Note nor examined Niyamatkhan Pathan, in whose presence, the amount was allegedly given to the accused. It is true that the amount allegedly advanced to the accused is reflected in abstract of daily ledger Exh-36. However, the prosecution has not produced the account ledger, wherein the amount allegedly advanced to the accused is debited. Therefore, except oral version and entry made in daily ledger Exh-36, there is no documentary evidence to show that the amount was advanced to the accused. As observed earlier, in order to rebut the presumption under section 139 of the Act, the accused is required to raise a probable defence. In view of the fact that the accused has disputed receipt of amount and by cross examination of the complainant, the accused was able to rebut the presumption and to raise a probable defence, burden shifted on the complainant to prove that the amount was advanced to the accused. The complainant was required to prove that the amount was given to the accused and there was existence of legally recoverable debt. However, the complainant failed to discharge his burden. Therefore, the trial Court was justified in recording that the complainant failed to prove that the cheque in question was given towards discharge of legally recoverable debt or liability. Therefore, no interference is warranted in the impugned judgment.
11. In the result, the appeal fails and stands dismissed.
(BANKIM N.MEHTA, J.) shekhar*