Appellant – original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged Judgment and Order of acquittal passed by the learned Principal Civil Judge and Judicial Magistrate First Class, Valsad on 25.5.2010 in Criminal Case No.596 of 2009 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the appellant – original complainant, he is doing business in the name of Govind Cement Agency at Dharampur and had business relations with the accused. As the accused was in need of finance, he demanded loan from him. Therefore, in all, Rs.70,500/- were advanced to the accused. On making demand of the outstanding amount, the accused gave cheque No.095325 dated 27.5.2009 of Rs.70,500/- drawn on the Sardarganj Mercantile Cooperative Bank Limited, Market Yard, Patan for the amount received by him. On presenting the cheque in the bank, it returned unpaid with the endorsement “Funds Insufficient”. Therefore, he informed the accused about dishonour of cheque and hence, the accused informed him that he would make arrangement for the amount after one month. Therefore, the cheque was again presented in the bank on 2.7.2009, but it returned with endorsement “Funds Insufficient”. Therefore, notice was served to the accused demanding the amount of unpaid cheque, but the accused did not pay the amount of unpaid cheque. Therefore, complaint 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, further statement of the accused was recorded under section 313 of the Code. The accused in his further statement explained that blank cheque has been misused. 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 advocate Mr. Sethna for the appellant at length and in great detail. Learned advocate Mr. Joshi for the respondent accused is absent. I have also perused the impugned judgment and record and proceedings of the trial Court.
5. Learned advocate Mr. Sethna submitted that the complainant proved that the cheque was issued by the accused towards discharge of his liability, but the accused did not rebut the presumption under section 139 of the Act. He also submitted that there are minor discrepancies in the prosecution evidence and the trial Court committed error in relying on such minor discrepancies. Therefore, the impugned judgment is required to be set aside. He relied on decision of Rangappa Vs. Shri Mohan reported in 2010(11) SCC 441.
6. It appears from the allegations made in the complaint that the complainant advanced in all Rs.70,500/- to the accused, who gave cheque for repayment of such amount. It also emerges that the amount was advanced on different dates. The complainant has not given particulars about the amount and date of advance to the accused. In order to prove his case, the complainant examined himself at Exh-11. In the cross examination, the complainant admitted that he maintains books of account and pays income tax. The cross examination also indicates that amount of Rs.70,500/- advanced to the accused were recorded in the books of account, but such books of account were not produced on the record of the case. The cross examination also indicates that the complainant did not obtain any writing in respect of the amount advanced to the accused. This evidence clearly indicates that except bare words, there is no documentary evidence to show that amount of Rs.70,500/- was advanced to the accused. Presumption under section 139 of the Act is rebuttable presumption. It is settled proposition that when an accused has to rebut the presumption under section 139 of the Act, 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 and raise probable defence, 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. Once the accused is able to raise probable defence and rebut the presumption, the burden shifts on the complainant to prove the existence of a legally recoverable debt or liability.
7. In the present case, as observed earlier, the accused raised probable defence that there was no existence of legally recoverable debt and the cross examination of the complainant indicates that no documentary evidence was produced by the complainant to show that amount of Rs.70,500/- was advanced to the accused. Therefore, the accused was able to rebut the presumption and raise a probable defence that there was no existence of legally recoverable debt. The complainant failed to discharge his burden to prove existence of legally recoverable debt. Therefore, in my view, the trial Court was justified in acquitting the accused by recording finding that the complainant failed to prove existence of legally recoverable debt.
8. It also emerges from the record that after return of the unpaid cheque, the complainant issued notice Exh-19 to the accused demanding the amount of unpaid cheque. The notice was sent by RPAD and by certificate of posting. It emerges from the acknowledgment due Exh-18 that the notice was not received by the accused, but it was received by someone on behalf of the accused. In the decision of M.D. Thomas Vs. P.S. Jaleel and another reported in 2009(14) SCC 398, the Hon’ble Supreme Court held that notice to drawer is a sine qua non in terms of clause (b) of proviso to section 138 of the Act and when the notice is not served to the accused, there is no escape from the conclusion that complainant had not complied with the requirement of giving notice in terms of clause (b) of proviso to section 138 of the Act. In the present case, as the notice was not served upon the accused, in my view, the requirements of provisions of law are not complied with.
9. In the decision of Rangappa (supra) relied on by learned advocate Mr. Sethna, the Hon’ble Supreme Court laid down law with regard to presumption under section 139 of the Act. In the facts of the case, the accused was able to rebut the presumption and therefore, this decision does not render any assistance to the appellant.
10. In view of above, learned advocate for the Mr. Sethna failed to point out any legal infirmity in the impugned judgment and hence, the appeal is required to be dismissed and is according dismissed.
shekhar* (BANKIM.N.MEHTA, J.)