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2012 DIGILAW 286 (RAJ)

Keshar Prasad Saraf v. Sahab Ram

2012-02-06

R.S.CHAUHAN

body2012
JUDGMENT 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 Neotiable Instruments 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-respondent, which was received by him on pm 20th April, 2007. However, receiving 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 accusedrespondent 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. 3. 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. 4. On the other hand, Mr. Rakesh Matoria, the learned counsel for the accused-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. .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. 5. Heard the learned counsel for the parties and perused the impugned judgment. 6. It is, indeed, trite to state that the it is the duty of the prosecution to establish the foundational facts of the case. It is only after the foundational facts of the case have been established that presumption can be drawn against the accused persons. Once the presumption is drawn, the accused can rebut the presumption by preponderance of probabilities. It is not for the accused to rebut its case beyond a reasonable doubt. A bare perusal of the testimony of the appellant clearly shows that he has not been able to tell the Court, the date on which the loan was given to the accused-respondent. He has merely made a vague allegation. Hence, he has not been able to establish that the cheque in dispute was given to him in order to discharge a debt or a liability. The learned Magistrate has gone to the extent of examining the defence witnesses and the defence evidence. According to Ex.D/1, the receipt prepared by the appellant, it is abundantly clear that the accounts were settled between the parties. Since the accounts were settled, the learned Magistrate was certainly justified in concluding that there was, in fact, no debt or liability that existed to be discharged for which the accused-respondent had given a cheque in dispute. Therefore, the learned Magistrate was certainly justified in concluding that the basic ingredients of offence under Section 138 of the Act have not been established by the complainant. Moreover, even if the presumption were to be drawn against the accused respondent, the accused-respondent has rebutted the said presumption by a high degree of probability in his evidence. Therefore, the learned Magistrate was certainly justified in concluding that the basic ingredients of offence under Section 138 of the Act have not been established by the complainant. Moreover, even if the presumption were to be drawn against the accused respondent, the accused-respondent has rebutted the said presumption by a high degree of probability in his evidence. Thus, the learned Magistrate has justified in acquitting the accused-respondent. 7. Since the learned Magistrate has critically analyzed the evidence, this Court does not find any illegality or perversity in the impugned judgment, this criminal leave to appeal is devoid of any merit; it is,hereby, dismissed.Appeal Dismissed *******