H.S.BHALLA, J. - (1.) THIS petition has been filed for leave to appeal to challenge acquittal of the respondent of the charge under Section 138 of the Negotiable Instruments Act, 1881.
(2.) CASE of the complainant is that cheque bearing No. 627399 dated 8.11.2004 for an amount of Rs. 4,50,000/- was issued by the respondent in favour of the complainant, which was presented to the Banker but was dishonoured for insufficient funds. After serving notice and failure of the respondent to make the payment, complaint was filed. Defence of the respondent was that the cheque had not been issued in discharge of his legal liability.
(3.) THE Trial Court dismissed the complaint, holding that presumption that the cheque was issued by the accused in favour of the complainant in discharge of his liability, stood rebutted. The relevant finding is as under : "The complainant firm which is dealing in the business of finance must be maintaining some cash books, day books, party ledger books, etc. Further, more the CW1 in his cross-examination admitted that loans are advanced to the loanees through cheques by the complainant firm. However in the cross-examination he claimed that no cheque was issued to the accused. He further stated that no loan account of accused is maintained by the complainant firm. He claimed that only loan agreement with regard to the loan advanced to the accused by the complainant firm was prepared. He further claimed that the loan agreement was returned to the accused at the time when the accused gave the cheques for the total amount of Rs. 17 lacs including the cheques involved in the present case. However, the complainant failed to produce any receipt regarding the delivery of the alleged view that the overall circumstances of the case are such that a documentary proof was made available to the accused of the complainant firm to rebut the legal presumption of which heavy burden casts on the accused. I am of the considered view that given the overall facts and circumstances of the case, the entire case of the complainant regarding the accused owing a legally enforceable debt to the complainant appears to be highly doubtful." ;