The appellant, original complainant, has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order passed by learned Chief Judicial Magistrate, Bharuch, on 30.7.2009 in Criminal Case No. 30256 of 1999 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). 2. According to the complainant, he is discharging duty as General Manager of complainant Spinning Mill at Bharuch and the Mill was given on lease to the accused by an agreement dated 1.10.1998. As per condition No. 6 of the agreement, routine expenses like office expenses, telephone expenses, stationery, postage, salary expenses and electricity bill were to be borne by the accused. As per condition No. 7, the amount of electricity bill was to be paid by the accused to the Mill on receipt of bill and such amount was to be paid by the complainant to the Electricity Board and as per condition No. 27, amount of salary of the employees was to be deposited in the Mill on 7th day of each month. The accused gave cheque No. 741917 dated 1.7.1999 drawn on Bank of Baroda, Bharuch Branch, for Rs. 3,50,000/- towards electricity bill for June, 1999 and gave cheque No. 741927 dated 7.7.1999 for Rs. 2,20,511.20 drawn on Bank of Baroda, Bharuch Branch, towards salary. Both the cheques when presented in the Bank returned unpaid as the accused stopped payment of the cheques and the cheques returned with endorsement “stop payment”. Therefore, notice by registered post acknowledgement due was served to the accused but the accused neither replied to the notice nor paid the amount of unpaid cheques. Therefore, complaint was filed in the Court of learned Chief Judicial Magistrate, Bharuch and it was registered as Criminal Case No. 30256 of 1999.
3. The trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused also submitted written submission. After hearing learned advocates for the parties, the trial Court by impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant preferred this appeal.
4. I have heard learned advocate Mr. Ankit Shah for learned advocate Mr. Ravani for the appellant, learned advocate Mr. A.P. Champaneri for learned advocate Mr. P.S. Champaneri for the respondent accused and learned A.P.P. Ms. Shah for the respondent State at length and in great detail. I have also perused the impugned judgement and record and proceedings of the trial Court.
5. Learned advocate for the appellant submitted that under Section 139 of the Act there is a legal presumption that the cheque was given for discharge of debt or liability and the accused is required to rebut the presumption but the accused failed to rebut the presumption by leading evidence. He also submitted that as per the agreement executed between the parties, the accused was required to make payment of electricity bills and salary of the employees and the cheques in question were given towards discharge of such liability. Therefore, the complainant proved legal debt. The accused failed to rebut the presumption. Therefore, the impugned judgement is required to be set aside.
7. Learned advocate for the respondent accused submitted that the presumption under Section 139 of the Act is rebuttable and in the present case the complainant did not produce any evidence to prove debt. The complainant committed breach of agreement. Therefore, the complainant was not entitled for the amounts of the cheques and the complainant failed to prove that the cheques were given towards discharge of legal debt. Hence the trial Court was justified in acquitting the accused and no interference is warranted in the impugned judgement.
8. It appears from the allegations made in the complaint that the agreement was entered into between the parties on 1.10.1998 and as per the terms and conditions of the agreement, the factory was given to the accused on lease. According to the complanant, as per the terms and conditions of the agreement, the accused was required to pay electricity bills and salary of the employees to the complainant and the accused gave cheques towards discharge of such liabilities.
9. In order to prove the prosecution case, agreement executed between the parties is produced at Exh. 98. The complainant has relied on condition No. 7 for claiming electricity bill and condition No. 27 for claiming salary of the employees. On perusal of condition No. 7 in the agreement, it appears that the accused agreed to pay electricity bill to the complainant from start of the Mill every month. According to the complainant, the accused gave cheque Exh. 81 for Rs. 3,50,000/- for electricity bill of June, 1999 but the complainant did not produce the bill in support of its case. Therefore, it is difficult to believe that cheque No. 741917 dated 1.7.1999 Exh.
81 for Rs. 3,50,000/- was given by the accused towards discharge of liability of electricity bill of June, 1999. Therefore, it cannot be said that the said cheque was given by the accused towards discharge of its legally recoverable debt or liability.
10. As regards cheque Exh. 82 for Rs. 2,20,511.10, according to the complainant, the said cheque was given towards salary of the employees of the Mill relying on condition No. 27 of the agreement. On perusal of condition No. 27 of agreement Exh. 98 it emerges that the accused was liable to make payment of salary to the employees and workers of the Mill. It does not give any right to the complainant to claim such amount of salary of employees or workers. Therefore, it cannot be said that the said cheque was given towards legally recoverable debt or liability. The complainant was not entitled under the agreement to claim amount of salary from the accused. Learned advocate for the appellant submitted that under condition No. 6 of the agreement, the accused gave cheque in question but said condition No. 6 only specifies the liability of payment of salary and other charges. It does not provide that such liability was payable to the complainant. Therefore, it cannot be said that cheque Exh. 82 was given towards discharge of liability of salary and hence it was given towards discharge of legally recoverable debt or liability.
11. It is settled proposition that presumption under Section 139 of the Act is a rebuttable presumption and 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 doubts about existence of legally recoverable debt or liability, prosecution can fail. In order to raise probable defence, the accused is not required to enter into witness box or lead evidence. The accused can rely on the materials submitted by the complainant. If the accused is able to raise a probable defence and the complainant fails to prove that the cheque was given towards discharge of existing recoverable debt or liability, the prosecution can fail. As observed earlier, in the present case the complainant relied on condition Nos. 7 and 27 of the agreement Exh. 98. However, the complainant did not produce any documentary evidence to prove that the cheque was given towards electricity bill as per condition No. 7 of the agreement or that the accused was liable to pay to the complainant the salary due to the employees and the workers of the Mill as per condition No. 27 of the agreement. The accused was able to rebut the presumption and raise a probable defence but the complainant failed to discharge his burden of proving the debt or liability. Therefore, the trial Court was justified in acquitting the accused.
12. In view of above, learned advocate for the appellant failed to point out any infirmity in the impugned judgement. Therefore, the appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn)