ORAL JUDGMENT: 1. Heard learned respective counsel for the parties. 2. This is an appeal preferred by the appellant (original complainant) challenging the judgment and order dated 21.10.2000, rendered by learned 3rd Jt. Judicial Magistrate First Class, Latur in STCC No.5427/1997, thereby acquitting the respondent/original accused for the offence p/u/s 138 of Negotiable Instruments Act. (The parties herein after are referred to as per their original status i.e. complainant and accused). 3. The factual matrix of the case are as follows:- It is the case of the complainant that he carries on business of electronics under the name and style as Keval Electronics near Water Tank, Barshi Road, Latur whereas accused is doing business of preparation of furniture work under the name and style of Suvarna Furnitures near Bank of Maharashtra, MIDC Branch, Barshi Road, Latur. The complainant intended to install furniture in his shop and asked the accused to prepare furniture. Accused also expressed his willingness to prepare the furniture for the complainant. Accordingly, the complainant entrusted the work of preparing furniture for his shop to accused. In pursuance of the said contract, accused asked the complainant to advance amount of Rs. 35,000/- and it was agreed between them that furniture work would be completed at about Diwali 1996. Accordingly, relying upon the promise of the accused, complainant advanced him cash of Rs. 35,000/- however, accused did not commence with the work of furniture. Accused also repeatedly promised to commence with the work but did not start the same. Ultimately the complainant found that accused is not interested in preparing furniture for his shop. Hence, he requested accused to repay the amount of Rs.35,000/- to him. However, accused avoided for the same but ultimately on 7.11.1997, the accused issued cheque for Rs.35,000/- dated 25.11.1997 to the complainant towards the repayment of the said amount. The complainant presented said cheque for encashment purpose, but, said cheque was dishonoured and returned unpaid with the cheque return memo dated 26.11.1997 bearing endorsement “Account Closed”. 4. In the meantime, the accused issued a notice through Advocate namely G.B.Chavan on 14.11.1997. The complainant replied to the said notice on 26.11.1997. Moreover, the complainant also issued a statutory notice to accused on 26.11.1997 and called upon the accused to make the payment of said cheque amount. 4. In the meantime, the accused issued a notice through Advocate namely G.B.Chavan on 14.11.1997. The complainant replied to the said notice on 26.11.1997. Moreover, the complainant also issued a statutory notice to accused on 26.11.1997 and called upon the accused to make the payment of said cheque amount. Accused was duly served with the said notice, but, inspite of receipt of said notice, accused failed to make the payment of cheque amount to the complainant. Hence, from the date of the receipt of the notice, complainant filed complaint against the accused under section 138 of Negotiable instruments Act (herein after referred to as N.I.Act for short) within the requisite period before 3rd J.M.F.C., Latur. Process came to be issued against the accused u/s 138 of N.I.Act. Accordingly, accused appeared therein and pleaded not guilty and claimed to be tried. 5. Tosubstantiate the case of the complainant, the complainant examined three witnesses i.e. complainant Vitthal Gorakh Shinde himself as CW 1 , Arvind Jondhale Bank Officer CW 2 and C.W.3 Dilip Garje where as accused neither examined himself nor examined any defence witness, but put forth his defence through the cross examination of the complainant and his witnesses and also through the statement recorded u/s 313 of Code of Civil Procedure. The defence of the accused is that complainant obtained two blank cheques from the accused, taking disadvantage of his position, bearing signature of the accused but same were mis-used by him and filed false case against the accused. 6. After considering the oral and documentary evidence adduced/produced by the prosecution and also considering the defence put forth by the accused, and also after considering rival submissions advanced by the parties, learned trial Court came to the conclusion that cheque in question was not issued towards discharge of legal enforceable debt/liability and consequently acquitted the accused for the offence p/u/s 138 of N.I.Act. Being aggrieved and dis-satisfied by the said judgment and order, the appellant i.e. original complainant has preferred present appeal assailing the same. 7. I have perused the impugned judgment and order as well as perused Record and proceedings with the assistance of learned counsel for the parties. Being aggrieved and dis-satisfied by the said judgment and order, the appellant i.e. original complainant has preferred present appeal assailing the same. 7. I have perused the impugned judgment and order as well as perused Record and proceedings with the assistance of learned counsel for the parties. AT the outset, the complainant adduced oral evidence by examining himself as CW 1 and also examined other two witnesses namely Arvind Jondhale as CW 2 Bank Officer and Dilip Garje i.e. witness to the transaction as CW 3 as well as produced documentary evidence and cheque in question for Rs.35,000/- drawn on Bank of Baroda dated 25.11.1997 cheque no.657988 is produced at Exh.18, bank return memo at Exh.19 dated 25.11.1997 bearing endorsement ‘account closed’ Exh.19, copy of statutory notice dated 26.11.1997 sent by complainant to the accused at Exh.20, registration receipt thereof at Exh.21, registered postal acknowledgment thereof at Exh.22, copy of the notice dated 14.11.1997 sent by advocate for the accused to the complainant and witness Dilip Garje Exh.24 and copy of the reply dated 26.11.1997 and copy of reply notice dated 26.11.1997 sent by Advocate for the accused to the complainant’s advocate dated 2.12.1997 Exh.23. 8. Keeping in mind the aforesaid documentary evidence adduced/produced by the parties and coming to the oral evidence adduced by the complainant, wherein complainant namely Vitthal Gorakh Shinde examined himself and stated that he negotiated with the accused in respect of preparation of furniture and as quoted by the accused, he handed over amount of Rs.35,000/- to him for preparation of furniture in presence of his friend witness Dilip Garje. Thereupon, the accused assured to prepare the furniture within a period of 15 days however, the accused did not comply with the said assurance. Hence, the complainant demanded said amount from him and accused also assured to repay the said amount. Accordingly, the accused issued cheque for Rs.35,000/- drawn on Bank of Baroda, on 7.11.1997 and asked the complainant not to deposit said cheque for about 8-10 days. Thereafter, the complainant presented said cheque for encashment purpose on 25.11.1997. however, the Bank Manager informed that the account was closed on the same day. Moreover, accused also gave notice dated 14.11.1997 to the complainant. The complainant sent reply to the said notice as well as complainant issued statutory notice to the accused through his Advocate. Thereafter, the complainant presented said cheque for encashment purpose on 25.11.1997. however, the Bank Manager informed that the account was closed on the same day. Moreover, accused also gave notice dated 14.11.1997 to the complainant. The complainant sent reply to the said notice as well as complainant issued statutory notice to the accused through his Advocate. Complainant identified said cheque and signature of the accused thereon at Exh.18 as well as memo received alongwith said cheque from the bank which is marked at Exh.19. He also identified the signature of his advocate on notice Exh.20. He also produced postal acknowledgment at Exh.20 and 22. He further produced reply given by the accused at Exh.23 and copy of notice at Exh.24. He further stated that inspite of receipt of the notice by the accused, he did not repay the cheque amount. 9. During the cross examination, he admitted that he neither gave any amount to the accused nor took any amount from him earlier. He also admitted that he does not keep any account in his shop, although monthly turnover of his shop is around Rs. 25,000/-. He also stated that he gave amount of Rs.35,000/- to accused in his shop and his friend Mr. Garje was present at that time. However, although accused assured to complete the work of furniture within four months, he failed therein. He further stated that after repeated requests, accused gave cheque in question to the complainant in his shop and signed thereon in his presence and his friend Garje was present at that time. He also admitted that accused gave him only one cheque and not two cheques. Accused gave suggestion to the complainant that accused gave two blank cheques to the complainant, but same was denied by him. He admitted that accused gave him notice dated 14.11.1997. He further stated that cheque No.725350 dated 23.3.1997 was issued towards earlier transaction. It was also suggested to him that out of the amount of Rs.20,000/- accused is liable to pay Rs.2,000/- but same was denied by him. Suggestion also was given to him that accused had come to pay Rs.2,000/-but since the complainant refused to acknowledge the same in writing hence, he returned back. It was also suggested that, the complainant demanded Rs.42,000/-to the accused including the interest, but same was denied by him. Suggestion also was given to him that accused had come to pay Rs.2,000/-but since the complainant refused to acknowledge the same in writing hence, he returned back. It was also suggested that, the complainant demanded Rs.42,000/-to the accused including the interest, but same was denied by him. It was further suggested to him that the complainant used blank cheques and put amount of Rs. 35,000/-on one cheque and amount of Rs.7,000/-on another cheque and presented the same. It was further suggested to him that complainant filed false case against accused to extract more money from him, but same was denied by him. 10. Accordingly, complainant stated in his deposition that he gave amount of Rs.35,000/-to the accused in his shop. Thereafter, accused gave cheque of Rs.35,000/-to the complainant in his shop, since he was unable to prepare furniture within the prescribed period and said cheque was signed by the accused in presence of the complainant and his friend Mr. Garje. Moreover, accused also put up his case to the complainant through his cross examination that accused gave two blank cheques to the complainant, and complainant used same cheques by putting amount of Rs.35,000/- on one cheque and amount of Rs.7,000/-on another cheque and presented the same for encashment purpose, but same was denied by the complainant. Complainant also admitted that there was no money transaction between the complainant and accused earlier and complainant never gave any amount to the accused, earlier. 11. That takes me to the deposition of CW 2 Dilip Garje wherein he stated that he knows the complainant and accused and accused carry on the business of furniture. Complainant had given contract of preparation of furniture to the accused and also gave Rs. 35,000/- to him, in Diwali 1996. However, accused did not prepare the same Hence, complainant demanded said amount back. Thereupon accused gave cheque of Rs.35,000/- to the complainant on 7.11.1997 and 25.11.1997. He also stated that he identified said cheque bearing signature of the accused thereon, drawn on Bank of Baroda. Complainant presented said cheques for encashment purpose on 25.11.1997 but same was dishonoured and returned unpaid with bank return memo. During cross examination, he stated that accused did not do work of the complainant for 7-8 months although receipt of money. He also stated that he identified said cheque bearing signature of the accused thereon, drawn on Bank of Baroda. Complainant presented said cheques for encashment purpose on 25.11.1997 but same was dishonoured and returned unpaid with bank return memo. During cross examination, he stated that accused did not do work of the complainant for 7-8 months although receipt of money. He further stated that accused gave cheque in question to the complainant in his shop and they three were present at that time. He further stated that accused already had brought written cheque and signed on the reverse side thereof. He also stated that he saw signature of the accused for the first time. 12. Accused put up his case and suggested to said witness that he gave amount of Rs.20,000/-to the accused and obtained blank cheques from the accused and demanded Rs.42,000/-towards the amount of Rs.20,000/- interest rate @ 10% pa. but same was denied by him. It was also suggested to him that accused offered to pay Rs. 2,000/- and in lieu thereof asked in writing but said witness refused therefor, but same was denied by him. Accused also suggested to him that he carries on business of money lending, but same was denied by him. It was further suggested to him that he was deposing falsely at the instance of the complainant but same was denied by him. 13. Accordingly, accused put up his case categorically to the said witness in the cross examination in respect of obtaining two blank cheques from him and misuse thereof but same was denied by the said witness. 14. That takes me to the deposition of CW 3 Arvind Jondhale i.e. the Bank Officer, wherein he stated that ‘New Suvarna Wood Furniture ‘has account in the bank and Sangram i.e. accused is operating said account as its proprietor. He further stated that cheuqe no.657988 has been sent to his bank through Latur District Central Co-operative Bank. The account was closed on 25.11.1997 and cheque was dis-honored and accordingly, cheque was returned to L.D.C.C. Bank along with memo Exh.19. He further stated that as per record of xerox copies which was brought by him, the cheque Exh.18 does not bear signature of accused i.e. Sangram Panchal. He also brought with him certified account extract of accused. The account was closed on 25.11.1997 and cheque was dis-honored and accordingly, cheque was returned to L.D.C.C. Bank along with memo Exh.19. He further stated that as per record of xerox copies which was brought by him, the cheque Exh.18 does not bear signature of accused i.e. Sangram Panchal. He also brought with him certified account extract of accused. He further stated that cheque Exh.18 has not been sent through any bank, but it was presented on the bank counter. He further stated that memo Exh.19 was given at the counter and not to the Bank. Cheque was returned as account was closed. During the cross examination, he stated that he brought with him certified copies of original. Account was closed on behalf of bank as there was no sufficient balance even to satisfy periodical service charges. He also stated that Exh.18 is the bearer cheque. 15. Accordingly, evidence of CW 3 Arvind Jondhale reflects that cheque Exh.18 does not bear signature of the accused and he confirmed the same from the record brought by him, along with him. He also stated that cheque Exh.18 was presented across the counter and not through the clearing and memo Exh.19 was given across the counter. 16. On the background of aforesaid oral and documentary evidence, learned counsel for the complainant canvassed that cheque in question was signed by the accused and it bears the signature and accused handed over the said cheque to the complainant in the shop of the complainant towards repayment of the amount of Rs.35,000/-given by the complainant to the accused for preparation of furniture since he failed to prepare said furniture and his contention has been supported by the witness Garje. It is also canvassed by the learned counsel for the complainant that complainant has adduced and produced oral as well as documentary evidence on record, as mentioned herein above and presumption under section 118 (a) and 139 of the N.I.Act is in favour of the complainant. It is categorically argued by the learned counsel for the complainant that accused failed to rebut said presumption. It is further submitted by learned counsel for the complainant that there existed legally enforceable debt/liability against the accused and accused issued cheque in question towards legally enforceable debt/liability, partly or in whole. It is categorically argued by the learned counsel for the complainant that accused failed to rebut said presumption. It is further submitted by learned counsel for the complainant that there existed legally enforceable debt/liability against the accused and accused issued cheque in question towards legally enforceable debt/liability, partly or in whole. It is further canvassed that complainant has complied with necessary requisite compliances as contemplated under section 138 to 142 of N.I.Act. Hence, learned counsel for the appellant urged that present appeal be allowed and impugned judgment and order of acquittal be quashed and set aside and accused be convicted for the offence p/u/s 138 of N.I.Act. Learned counsel for the complainant also argued that the cheque return memo Exh.19 discloses that cheque in question was returned due to closure of the account and reason given for return of the said cheque comes under section 138 and 142 of N.I.Act and therefore, accused is guilty under section 138 of N.I.Act. 17. Learned counsel for the accused countered the said argument and submitted that although, initial presumption under section 118 (a) and 139 of N.I.Act has been raised in favour of the complainant, said presumption is rebutable under section 139 of N.I.Act. In the said context, learned counsel for the accused pointed out that the accused has put forth the specific defence that he had obtained some loan from the complainant which has repaid to the complainant and blank cheques were obtained by the complainant from accused at the time of said loan and complainant had misused the said blank cheques and filed false case against the accused. Learned counsel asserted that the accused has put forth his case to the complainant and his witnesses through their respective cross examinations. 18. Moreover, the accused has categorically stated in his statement recorded under section 313 of Cr.p.C. that he had paid Rs. 16,000/-to complainant and blank cheque was given to the complainant. He has demanded more amount. Learned counsel asserted that the accused has put forth his case to the complainant and his witnesses through their respective cross examinations. 18. Moreover, the accused has categorically stated in his statement recorded under section 313 of Cr.p.C. that he had paid Rs. 16,000/-to complainant and blank cheque was given to the complainant. He has demanded more amount. Learned counsel also invited my attention towards the notice dated 14.11.1997 issued by the accused to the complainant and his witness Garje, which reflects that at the request of accused, amount of Rs.20,000/- was given by witness Garje through the complainant to the accused for his business of furniture and at that time, taking disadvantage of the necessity of the accused, two blank cheques drawn on bank of Baroda were obtained from the accused on 16.12.1996 alongwith a blank bond of Rs.50/- obtaining signature of the accused thereon. It is also stated in the said notice that amount of Rs.18,000/- was repaid by accused as stated therein and accused offered to pay balance amount of Rs. 2,000/- and requested receipt of full and final payment in writing on 10.11.1997 but the complainant and witness Garje gave evasive replies and hence, accused declined to pay said amount of Rs.2,000/- and expressed his readiness and willingness to pay said amount after receipt of the writing towards full and final receipt of the amount. 19. Moreover, learned counsel for the accused pointed out from the evidence of complainant’s witness CW 2 Arvind Jondhale that he categorically stated that cheque in question does not bear signature of accused namely Sangram and he confirmed same from the xerox copy which were brought by him in the Court on the said date. Accordingly, learned counsel for accused canvassed that accused has rebutted the presumption raised against him under section 139 of N.I.Act on preponderance of probability and therefore, burden was shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability and cheque in question was issued by the accused towards discharge of legally enforceable debt/liability. It is further submitted that complainant has not produced any cogent evidence in that respect. It is further submitted that complainant has not produced any cogent evidence in that respect. Hence, learned counsel submitted that learned trial court acquitted the accused rightly and further submitted that the view adopted by learned trial court while acquitting the accused after analyzing and assessing the record is a possible view and no interference therein is called for in the present appeal and urged that present appeal be dismissed. 20. I have perused oral and documentary evidence adduced/produced by the complainant and also considering the defence put forth by the accused and submissions advanced by the learned counsel for the parties anxiously, at the outset, considering the oral and documentary evidence adduced/produced by the complainant and more particularly, considering the cheque in question Exh.18 and bank return memo and statutory demand notice dated 26.11.1997 sent by the complainant to the accused and registration thereof, initial presumption has been raised in favour of the complainant under section 118 (a) and 139 of N.I.Act that the accused issued cheque in question to the complainant towards discharge of debt/liability, partly or in whole. Hence, it was incumbent upon the accused to discharge said presumption which is reversible under section 139 of N.I.Act and test required there for is on preponderance of probability. 21. In the said context, the accused has raised defence that he had obtained some loan from the complainant which he had repaid to him but blank cheques were obtained from the accused at that time and complainant mis-used said cheques and filed false case against the accused. In the light of the said defence, the accused sent notice to the complainant and witness Garje on 14.11.1997 and categorically put forth his case therein. In fact, said notice was issued by the accused to the complainant prior to the date of cheque since date of the cheque is 25.11.1997 and prior dishonor thereof and date of the notice is 14.11.1997. 22. Keeping in mind said defence of the accused and coming to the oral evidence adduced by the complainant, it is significant to note that accused has put forth his defence through cross examination of the complainant himself i.e. Vithoba Shinde and his witness Garje and Jondhale as discussed herein above. Moreover, pertinently, complainant’s witness Mr. 22. Keeping in mind said defence of the accused and coming to the oral evidence adduced by the complainant, it is significant to note that accused has put forth his defence through cross examination of the complainant himself i.e. Vithoba Shinde and his witness Garje and Jondhale as discussed herein above. Moreover, pertinently, complainant’s witness Mr. Arvind Jondhale has categorically stated in his deposition that cheque in question Exh.18 does not bear signature of accused namely Sangram and he confirmed the same from the Xerox copy of record which was brought by him in the Court. It has also come in the evidence that accused did not close his account, but it was closed by the bank itself on the very day i.e. on 25.11.1997 since there was no balance for debiting the service charges. Hence, considering all the said aspects and defence of the accused which was put forth by him through cross examination of the complainant’s witnesses as well as through his statement recorded under section 313 of Cr.P.C. and more particularly, categorical statement made by CW 2 Arvind that cheque in question does not bear signature of the accused, it is apparent that defence put forth by the accused appears to be probable and consequently, accused has rebutted the presumption under section 139 of N.I.Act, on the test of preponderance of probability. 23. In this scenario, it is incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability and cheque in question was issued by the accused to the complainant towards discharge of legally enforceable debt/liability, partly or in whole. However, in the said context, complainant himself has categorically admitted in his deposition that there was no money transaction between the complainant and accused earlier. However, in the said context, complainant himself has categorically admitted in his deposition that there was no money transaction between the complainant and accused earlier. Moreover, testimony of the complainant stating that he paid amount of Rs.35,000/- to the accused towards preparation of furniture, appears to be doubtful since considering the case put forth by the accused to the complainant through his cross examination that there appears to be some other transaction of loan of Rs.20,000/-, allegedly given by witness Garje to the accused through complainant which appears to have been repaid to the extent of Rs.18,000/- and accused has to repay balance amount of Rs.2,000/- on issuance of receipt of full and final payment which appears to have been denied by them and accused still was ready and willing to pay amount of Rs.2,000/- to the complainant and witness Garje as stated in the notice dated 14.11.1997. Besides, witness Garje is appears to be friend of complainant, which has been admitted by him in his testimony and pertinently, notice dated 14.11.1997 issued by accused to both of them i.e. complainant and witness Garje, possibility of deposing CW 3 Garje in favour of complainant to help him cannot be ruled out. 24. Apart from that, the complainant has not produced any cogent evidence to prove and establish that he handed over the amount of Rs.35,000/-to the accused and no writing has been produced by the complainant in that respect and testimony of alleged witness Garje is under doldrums as mentioned herein above. 25. Hence, it is apparently clear that the complainant has failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against the accused on the date of issuance of cheque in question, and further complainant failed to prove and establish beyond reasonable doubt that accused issued cheque in question to the complainant towards discharge of legally enforceable debt/liability and hence, it is further apparently clear that complainant has failed to discharge the said burden beyond reasonable doubt, which was rebutted as mentioned herein above and therefore, learned trial court acquitted the accused rightly for the offence punishable under section 138 of N.I.Act. 26. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by learned trial court while acquitting the accused is a possible view and said view does not appear to be perverse. 26. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by learned trial court while acquitting the accused is a possible view and said view does not appear to be perverse. Moreover, the reasoning adopted by the learned trial court while acquitting the accused also cannot be faulted with, and hence, no interference therein is called for in the Appellate jurisdiction and therefore, present appeal fails. 27. In the result, present appeal which is sans merits, stands dismissed. R & P be sent back to the concerned Court.