- (1.) THE complainant-appellant is aggrieved b the judgment dated 05.03.2009 passed by the Judicial Magistrate, First Class, Hanumangarh, whereby the learned Magistrate has acquitted the accused-respondent, Sahab Ram, for offence under Section 138 of the N.I. Act, ('the Act', fort short).
(2.) ACCORDING to the appellant, he had filed a complaint under Section 138 of the Act wherein he had claimed that Sahab Ram had taken a loan of Rs. 1,50,000/-. In lieu of the loan, he had given a cheque, bearing No.722391, dated 13.04.2007 for the said amount. However, when he submitted the said cheque for encashment, the said cheque was dishonored on the ground of insufficient fund. On 18.04.2007, he had sent a legal notice to the accused-re spondent, which was received by him on pm 20th April, 2007. However, re ceiving the receipt of notice, the accused-respondent failed to repay the loan amount. In order to support its case, the complainant examined himself as a witness and submitted five documents. In turn, the accused-respondent examined two witnesses, including himself, and also submitted two documents. After going through the oral and documentary evidence, vide judgment dated 05.03.2009, the learned Magistrate acquitted the accused respondent. Hence, this criminal leave to appeal before this court. Mr. Kishan Bansal, the learned counsel for the appellant, has vehemently contended that since the signature on the disputed cheque was admitted, the presumption under Section 139 of the Act should have been drawn against the accused respondent. However, the learned Magistrate has failed to do so. Moreover, the learned Magistrate has not appreciated the evidence in proper perspective.
(3.) ON the other hand, Mr. Rakesh Matoria, the learned counsel for the ac cused-respondent, has contended that presumption under Section 139 of the Act can be drawn only after the complainant has established the foundational facts of the case. Admittedly, there was business transaction between the complainant and the accused-respondent. Admittedly, according to the receipt (Ex.D/ 1), accounts were settled in June, 2002. Moreover, the complainant did not reveal the date on which he had allegedly advanced a loan of Rs. 1,50,000/- to the accused-respondent. Therefore, he could not establish the fact that the cheque was given in discharge of any debt or liability. Since the said fact was not established by him, the presumption under Section 139 of the Act could not be invoked against the accused-respondent. Secondly, by force of probabilities, created by the accused-respondent, he has rebutted the presumption which was drawn against him. He has not only produced the documentary evidence to show that the accounts were settled, but has also examined Ramnarayan (D.W.2). Since the presumption has been rebutted, the learned Magistrate was certainly justified in acquitting the accused-respondent. Therefore, the learned counsel has supported the impugned judgment.;