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TMI Blog2021 (10) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... e dishonoured cheque placed before it was indeed issued in discharge of legally enforceable debt or liability of the amount mentioned therein, although the presumption in this regard is a rebuttable one. Looking to the provisions contained in Section 139 of the Act, 1881 the learned trial Magistrate ought to have presumed that cheque (Ex.P-2) was issued by respondent/accused for the discharge of loan amount/legally enforceable debt as has been stated by Mahendra Kumar Sahu (PW-1) because the accused has not examined himself or adduce any evidence to rebut the aforesaid presumption. Although, in the statement recorded under Section 313 of the CrPC, respondent/accused has stated that he has not given any cheque to the complainant but the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,366/-, in default thereof, to undergo simple imprisonment of four months - the appeal is allowed reversing the acquittal. - Acquittal Appeal No. 146 of 2017 - - - Dated:- 8-10-2021 - N. K. Chandravanshi , J. For the Appellant : Sunil Pillai , Advocate ORDER Hon'ble Shri Justice N. K. Chandravanshi 1. This Acquittal Appeal is directed against the judgment of acquittal dated 25th March, 2014 passed by Judicial Magistrate, First Class, Raipur (C.G) in Criminal Complaint Case No. 642/2013, whereby the said Court acquitted the respondent/accused of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for brevity Act, 1881). 2. As per the case of the appellant/Complainant, respondent had entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant under Section 139 of the Act, 1881 and consequently erred materially by acquitting the respondent/accused of the charge levelled against him. It is next submitted that the respondent/accused had never replied the legal notice nor entered into the witness box to deny the charges levelled against him or to deny the fact that the alleged cheque was issued by him in favour of complainant, therefore, there is a presumption under Section 139 of the Act, 1881 in favour of the complainant and thereafter onus would be upon the respondent/accused to rebut the presumption but he has not laid any evidence to that effect. He would also submit that presumption mandated by Section 139 of the Act, 1881 includes a presumption that there exists a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different monthly installments but he defaulted many installments and for repayment of loan amount, he had issued Cheque bearing No. 574684 (Ex.P-1) dated 14.12.2012 amounting to ₹ 4,72,366/- of Punjab National Bank, which was deposited by Complainant in ICICI Bank for its clearance but the same was dishonoured by the Bank stating that Insufficient Fund in the account of drawer. In this regard, complainant received intimation (Ex.P-3) on 20.12.2012, thereafter, he sent legal notice (Ex.P-4) to respondent/accused through registered post for payment of amount of alleged cheque within 15 days from the date of receipt of said notice, Ex.P-5 is a postal receipt and Ex.P-6 is acknowledgment for the same. The said legal notice was receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of legally enforceable debt or liability of the amount mentioned therein, although the presumption in this regard is a rebuttable one. 11. The aforesaid presumption has also been reiterated by Hon'ble Supreme Court in the case of Sumeti Vij v. M/s. Paramount Tech Fab Industries AIR 2021 SC 1281. 12. Looking to the provisions contained in Section 139 of the Act, 1881 and aforesaid judicial pronouncements of the Apex Court, learned trial Magistrate ought to have presumed that cheque (Ex.P-2) was issued by respondent/accused for the discharge of loan amount/legally enforceable debt as has been stated by Mahendra Kumar Sahu (PW-1) because the accused has not examined himself or adduce any evidence to rebut the aforesaid presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also, therefore, on the basis of legal presumption under Sections 139 and 118 of the Act, 1881 and the aforesaid judicial pronouncement of the Apex Court, it is proved that the cheque was issued by the respondent/accused to discharge loan amount/legally enforceable debt. 14. In view of the aforesaid discussion, I am of the opinion that finding arrived at by the trial Magistrate is unsustainable in law. The appellant/complainant is entitled to get the cheque amount of ₹ 4,72,366/- and in addition to that since the transaction is of the year, 2012, he is entitled to get ₹ 2 lakhs more on account of expenses and interest. 15. Accordingly, the appeal is allowed reversing the acquittal. The respondent/accused is convicted for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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