NIRBHAY SINGH Vs. BADRILAL

JUDGEMENT

(1.) BY this application under Section 378(4) of the Cr.P.C. the applicant complainant Nirbhaysingh has challenged the judgment of acquittal dated 26.9.12 passed by the J.M.F.C. Indore in Criminal Case No.399/11 acquitting the accused respondent Badrilal from offence under Section 138 of the Negotiable Instruments Act.

(2.) BRIEFLY stated the facts of the case are that the complainant and the respondent accused are resident of one colony and well known to each other. The respondent took a sum of Rs.1,50,000/ - as loan from the complainant for the wedding that took place in his family and in return gave a cheque drawn on Indore Premier Co -operative Bank Ltd, Branch Annapurna Road, Indore bearing cheque No.035666 dated 05.08.2010. On its presentation to the Bank of the complainant, the same was returned with the tip 'account closed' and hence legal notice was issued by the complainant dated 21.10.2010 through his advocate. 2. The same was received by the respondent accused on 25.10.10 however since the money was not returned a complaint was filed before the competent Court on 10.11.2010. The accused abjured his guilt and stated that he was falsely implicated in the matter. The trial Court on considering the evidence acquitted the accused from the said offence and hence the present application for grant of leave to file appeal.

(3.) COUNSEL placed reliance on Rangappa Vs. Sri Mohan reported in [(2010) 11 SCC 441] to state that presumptions were mandated under Section 139 of the NI Act regarding the existence of legally, enforceable debt or liability, however such presumptions are rebuttable in nature. The standard of proof was stated in the case required for rebuttal i.e., standard proof is required in such cases. Counsel vehemently urged the fact that in the said case also the complainant was not certain as to when the accused had actually issued the cheque and the Apex Court had held that when the accused had admitted his signatures, Section 139 of the Act would come into play and the onus would be on the accused to prove his case. Counsel stated that in the present case the accused respondent had not been able to successfully rebut the presumptions. Moreover Counsel placed reliance on Adivekka and others V. Hanamavva Kom Venkatesh (deceased by Lrs.) and another reported in AIR 2007 SC 2025 to state that adverse inference has to be drawn against the accused/person due to non - examination against the party to a suit. In the instant case Jagdish Patel has not been examined. Counsel prayed that the appeal be allowed and the judgment passed by the lower