- (1.) The appellant, Mr. M.R. Choudhary, is aggrieved by the order dated 16.01.2009 passed by Additional Chief Judicial Magistrate No.3, Bikaner, whereby the learned Magistrate has acquitted respondent No.2, Mangilal, for offence under Section 138 of the Negotiable Instruments Act ('the Act', for short).
(2.) Briefly, the facts of the case are that according to Mr. Choudhary, Mangilal had taken a loan of Rs.39,000/- for his domestic needs. In order to repay the said amount, Mangilal had given him a cheque, cheque No.754336, dated 04.06.2004, drawn on Punjab & Sind Bank, Natthusar Gate Branch, Bikaner for the said amount. However, when he submitted the said cheque for encashment, he was informed by the bank that the cheque could not be honoured because of insufficient amount in the account. Therefore, he had sent a notice on 11.06.2004. Despite service of notice, the said amount was not repaid by Mangilal. Therefore, the complainant had filed a complaint under Section 138 of the Act. In order to buttress his case, the complainant had examined himself as a witness and exhibited six documents. In defence, Mangilal had also examined himself as a witness and had also submitted a single document. After going through the oral and documentary evidence, the learned Magistrate had acquitted Mangilal. Hence this appeal before this Court.
(3.) Mr. Sabir Khan, the learned counsel for the appellant, has contended that the learned Magistrate has acquitted Mangilal ostensibly on the ground that although the Cheque Number was claimed to be 754336, the cheque which was submitted as Ex.1 is numbered as 654336. According to the learned counsel, it was merely a typographical mistake. Therefore, the learned Magistrate was not justified in acquitting the accused-respondent. On the other hand, Mr. Manish Dhadhich, the learned counsel for the accused-respondent, has contended that the accused had clearly stated in his testimony that although he had borrowed Rs.30,000/- from the complainant, he had repaid the said amount. He had given certain cheques for different amounts, which were encashed. After he had repaid the loan amount, he had asked the complainant to return the cheques. However, instead of returning the cheques, the complainant has come with a false case against him. In order to buttress his plea that the loan amount was paid through different cheques, he had submitted the bank statement. Therefore, he had rebutted the presumption drawn under Section 139 of the Act. Once the presumption was rebutted, it was the duty of the complainant to establish his case beyond a reasonable doubt. However, the complainant failed to do so.;