PRAKASHKUMAR PURSHOTTAMDAS PATEL Vs. NISHANT B MAKWANA

JUDGEMENT

(1.) APPELLANT original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by the learned Metropolitan Magistrate, Negotiable Instruments Act, Court No.6, Ahmedabad on 15.12.2010 in Criminal Case No.2439 of 2008 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short the Act).

(2.) ACCORDING to the complainant, as the father of the accused was his friend, he had acquaintance with the accused. The accused was running business of producing Gujarati film in the name of 'Nishant Creative Arts' and was proprietor of the said firm. On account of acquaintance, the accused, before 2-3 months from the date of statutory notice, demanded hand loan for producing Gujarati film. Therefore, Rs.20 lacs were advanced to the accused as hand loan. The accused gave cheque No.363417 dated 25.11.2008 for Rs.20 lacs drawn on Union Bank of India, Naroda branch, Ahmedabad. On presenting the cheque in the bank, it returned unpaid on account of insufficient funds with the endorsement 'Today's opening balance is insufficient'. Therefore, notice through advocate was served to the accused as required under section 138(b) of the Act and demand was made for unpaid cheque amount. The accused received the notice, but did not pay the unpaid amount of cheque and gave false and evasive reply. Therefore, complaint under section 138 of the Act was filed.

(3.) LEARNED advocate Mr. Brahmbhatt submitted that the acquittal is recorded on the ground that the complainant did not produce any evidence with regard to his income to show that he had financial capacity to give advance of such amount, but under section 139 of the Act, presumption is in favour of holder of a cheque that the cheque was issued towards discharge of debt or liability and accused has to rebut the presumption, but the accused did not lead any evidence to rebut the presumption. He also submitted that according to the accused, the cheque in question was given to one Chandrikaben and the cheque was misused, but mere explanation given for cheque is not sufficient to rebut the presumption, but the accused is required to lead evidence in that regard and as accused did not lead any evidence, the trial Court committed error in acquitting the accused and hence, impugned judgment is required to be set aside. LEARNED advocate Mr. Brahmbhatt relied upon decisions reported in case of Goa Plast (P) Ltd. v. Chico Ursula D'souza reported in AIR 2004 SC 408, in the case of Hiten P. Dalal Vs. Bratindranath Banerjee reported in JT 2001(5) SC 386, in the case of M/s Dalmia Cement (Bharat) Ltd. Vs. M/s Galaxy Traders and Agencies Ltd. And others reported in 2001 AIR SCW 315, in the case of M/s Kusum Ingots & Alloys Ltd. Vs. M/s Pennar Peterson Securities Ltd. And others reported in JT 2000(2) SC 390, in the case of M/s Prajapati Oil Industry through its owner Rameshbhai Vs. State of Gujarat reported in 2004(1) GLH 365 and 2012(1) Crimes 164 (Bombay).