JUDGMENT : 1. The present acquittal appeal has been filed by the complainant against the Judgment dated 11.11.2021 passed in Criminal Complaint Case No. 807/2016 by the learned Judicial Magistrate First Class, Bilaspur, (C.G.), whereby the learned Trial Court acquitted the accused /respondent herein from the charge punishable under Section 138 of the Negotiable Instrument Act, 1881 (for short ‘the N.I. Act’). 2. Brief facts of the case are that accused/respondent herein had given a cheque (Ex. P-1) bearing No. 719036 dated 15.10.2016 amounting to Rs. 1,00,000/- to the complainant for discharge of debt or liability amount, which was deposited by the complainant in his bank for withdrawal. The said cheque got dishonored due to insufficient funds in the account (Ex. P/2), information of which was given to the accused/respondent by the complainant in the prescribed time (Ex. P/ 3) but the accused/respondent did not pay the amount. 3. It is admitted fact that the accused/respondent herein and the complainant are known to each other and owing to the acquaintance, the accused/respondent borrowed Rs.1,20,000/- from the complainant on account of marriage of his sister. To repay the loan taken by the accused/respondent, some cheques of Rs. 4000- 4000/- were given to the complainant. The complainant received only Rs. 16,000/- from the four cheques and the remaining cheques were dishonoured. On being failure to pay the amount, the complainant demanded money upon which the accused/respondent gave a cheque (Ex.P-1) bearing No. 719036 dated 15.10.2016 drawn on State Bank of India, Branch Collectorate , Bilaspur. The said cheque was deposited in Kotak Bank, Branch Bilaspur, by the complainant for encashment, which was dishonored on account of insufficient fund and However the said cheque was dishonoured with the remarks "Insufficient Funds" vide returning memo dated 17.10.2016 (Ex. P/2). 4. It is also admitted fact that on 24.10.2016, information in this regard was sent by a registered mode to the accused/respondent by the complainant in prescribed period (Ex.P/3), but after receiving the notice on 25.10.2016 (Ex.P/4), the accused/respondent did not pay the amount. When the amount was not paid by the accused/respondent, the complaint under Section 138 of N.I. Act was filed by the complainant/appellant. The trial Court took cognizance of the complaint and issued notice to the accused/respondent herein who then appeared in the matter. When the amount was not paid by the accused/respondent, the complaint under Section 138 of N.I. Act was filed by the complainant/appellant. The trial Court took cognizance of the complaint and issued notice to the accused/respondent herein who then appeared in the matter. The trial was conducted and the learned J.M.F.C., after appreciating oral and documentary evidence acquitted the accused/respondent herein on this ground that the Complainant could not proved the factum of giving of loan to the accused and ultimately the order of acquittal was passed which sought to be challenged by filing the instant appeal. 5. Learned counsel for the applicant/complainant argued that impugned order passed by the learned J.M.F.C. is bad-in-law and has been passed without considering the evidence adduced by the applicant. The learned trial Court has failed to consider the settled position of law with respect to the presumption in the matter relating to the dishonor of cheque. In this case the defence of the respondent/ accused was that he had taken less amount from the applicant, but the signature of the cheque and the fact of cheque available with the complainant goes to show that although the accused has admitted his debt. 6. Learned counsel appearing for the appellant further contented that there is no plausible defence was put by the respondent/accused, but the Trial Court held that money was not given by the complainant and mere issuance of cheque does not prove that the cheque was issued under any debt or obligation. 7. The applicant/complainant had laid evidence in line with the framework of the N.I. Act, however, without analyzing the evidence of the defence, the learned trial Court committed error in shifting the entire onus of proof on the applicant herein, which is a gross violation of well settled principle and procedure in matters pertaining to the N.I. Act. According to Section 118 and 139 of the N.I. Act, 1881, there are legal presumptions to be drawn about negotiable instruments in question and there were sufficient material was available on record to act upon the presumption under Section 118 and 139 of the N.I. Act. 8. Learned counsel for the applicant/complainant has argued that accused has admitted in his deposition that he has issued cheque in question in favour of the complainant, therefore, a presumption Under Section 139 of Negotiable Instruments Act shall be drawn. 8. Learned counsel for the applicant/complainant has argued that accused has admitted in his deposition that he has issued cheque in question in favour of the complainant, therefore, a presumption Under Section 139 of Negotiable Instruments Act shall be drawn. It is further argued that the accused has not placed on record any document to show that half of the amount has been paid by him. As such, the impugned judgment of acquittal deserves to be set aside and the accused/respondent is liable to be convicted under Section 139 of N.I. Act. He relied upon a decision of the Hon’ble Supreme Court in the matter of Maruti Udyog Ltd. V., Narender & Anr., reported in (1999) 1 SCC 113 &, another decision of High Court of Delhi in the matter of Kajal V. Marwah, reported in MANU/DE0883/2014. 9. On the other hand, learned counsel for the accused/respondent supporting the impugned judgment of acquittal submits that the mere issuance of the cheque does not prove that the cheque was issued under any debt or obligation. Firstly, it is necessary for the complainant/applicant to prove that the cheque was issued under a debt or obligation. A presumption can be made under Section 139 of the N.I. Act, only after the complainant discharges his burden. Thus the trial Court has rightly acquitted the accused /respondent. 10. I have perused the trial Court record with utmost circumspection and also gone through the impugned judgment wherein the trial Court has held on following facts:- (I) After examination of evidence on record, the trial Court found that the cheque (Ex.P/1) was issued by the accused/respondent on 15.10.2016, bearing cheque No. 719036 drawn on State Bank of India of Rs. 1,00,000/-. (ii) The trial Court also proved that due to insufficient fund, the cheque was returned to the complainant with memo dated 17.10.2016 (Ex.P/2). (iii) The complainant has given demand registered notice to the respondent on 24.10.2016 (Ex.P/3) and the respondent/ accused received that notice on 25.10.2016 (Ex.P/4). After giving notice of 15 days, the respondent failed to pay the said amount. Thereafter, the complainant/applicant within time filed complaint against the respondent/accused on 30.11.2016. (iii) The complainant has given demand registered notice to the respondent on 24.10.2016 (Ex.P/3) and the respondent/ accused received that notice on 25.10.2016 (Ex.P/4). After giving notice of 15 days, the respondent failed to pay the said amount. Thereafter, the complainant/applicant within time filed complaint against the respondent/accused on 30.11.2016. (iv) The defence of the respondent/accused was that he has taken loan from the complainant which was on the lower side and after trial, the trial Court in conclusion believed the defence version of the accused/respondent and held that that the complainant/applicant could not prove the factum of lending of money to the accused, hence the complaint is liable to be dismissed and the trial Court acquitted the respondent. 11. The learned trial Court in paragraph 11 of the impugned judgment, held that the complainant had not made any written communication with the accused regarding lending Rs. 1,00,000/- to the accused and no evidence has been presented by the complainant regarding the loan taken by the accused. 12. The learned trial Court has also observed in para 12 as under :- ^^ifjoknh us izfrijh{k.k esa ;g dFku fd;k gS fd og izksiVhZ dk dk;Z djrk gS ,oa ifjoknh us izfrijh{k.k esa ;g dFku fd;k gS fd og izkiVhZ dk dk;Z djrk gS ,oa ifjoknh us vius izfrijh{k.k dh dafMdk 21 esa Lohdkj fd;k gS fd og vius vk; ls yksxks dks m/kku esa jde nsrk gSA ijarq bldk mYys[k vk;dj fooj.kh esa ugh djrk gSA^^ 13. I have gone through the record and found that there is no paragraph 21 of the cross-examination. The learned trial Court has wrongly mentioned that the complainant gives money to people on loan from his income. In-fact, the complainant has categorically stated that in March 2015, he has given loan to the accused/respondent and when the complainant demanded the said loan, the respondent/accused had given some cheques of Rs. 4000- 4000/- to the complainant, out of which the complainant received only Rs. 16,000/- from four cheques and the remaining cheques were dishonored. The applicant/ complainant again demanded money and in that circumstance, on 15.10.2016 the accused/respondent has given a cheque bearing No. 719063 amounting to Rs. 1,00,000/- to the complainant. It ap- pears that after receiving of the demand notice, the respondent/accused has not given any reply to the complainant/applicant. If he has not taken any loan, why he has not filed reply ?. 1,00,000/- to the complainant. It ap- pears that after receiving of the demand notice, the respondent/accused has not given any reply to the complainant/applicant. If he has not taken any loan, why he has not filed reply ?. 14. Accused examined himself as DW1 and in paragraph 05 of his crossexamination, he deposed as under:- ^^05- ;g dguk lgh gS fd esjs }kjk psd esa mYysf[kr jkf'k dk Hkqxrku ugha fd;k x;k gSA lk{kh Lor% dgk fd esjs }kjk pSd esa mYysf[kr jkf'k es ls vk/ks ls T;knk jde dk Hkqxrku dj fy;k x;k gSA ;g dguk lgh gS fd esjs }kjk Lor% dgs x;s ckrksa ds laca/k esa vk/ks ls T;knk Hkqxrku dj ckr crk;k gw] ml laca/k esa U;k;ky; esa dksbZ nLrkost izLrqr ugah fd;k gSA^^ 15. As such, the accused/respondent has himself accepted the fact that he has taken loan from the applicant and half of the loan amount has been paid by him but he has not produced any document in this regard. However, the learned trial Court has proceeded to decide the case placed onus of proof on the complainant. 16. Section 118 of the Negotiable Instrument Act, 1881 mandates the Courts to believe :- (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred for consideration; (b) that every negotiable instrument bearing a date was made or drawn on such date; (c) that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) that every transfer of a negotiable instrument was made before its maturity; (e) that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 17. 17. Section 139 of the Negotiable Instrument Act, 1881mandates the Courts to believe “Unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” 18. On perusal of the records, it clearly reflects that burden of proof was clearly discharged by the complainant. Thus, sufficient material was available on record to act upon presumption under Section 118 and 139 of the N.I. Act 1881. The entire defence of respondent/accused was only that he has taken less amount of loan, but the signature of the cheque and the fact of cheque available with the complainant goes to show that although the accused has admitted his debt but the trial Court has erred seriously in presuming something otherwise and the approach made by the learned trial Court to the consideration of the evidence in the case is vitiated by some manifest illegality. Therefore, the impugned order is liable to be interfered. 19. Negotiable Instrument Act is a special Act. In the instant case the accused/respondent has admitted his signature and issuance of cheque which is also evident from the deposition of the respondent/ accused and he stated in his cross-examination that the said loan has been taken by him, but he has not placed on record any document to show that half of the amount has been paid by him. Thus, this Court is of the opinion that the complainant has given the loan to the respondent and to repay the said loan, the cheque was drawn in respect of debt or liability by the respondent, which got dishonoured. Thus, the burden of proof should be shifted upon the respondent/accused, that when did he returned half of the loan amount ?. As such the impugned judgment of acquittal cannot be sustained and deserves to be and the same is accordingly, set aside. 20. Given the facts and circumstances of case, the accused/respondent is convicted under Section 138 of the N.I. Act. Considering the facts of the case and further considering that the cheque for sum of Rs. 1,00,000/- which was issued by the respondent, got dishonoured, therefore, the respondent is sentenced to pay fine of Rs. 1,20,000/-. The aforesaid amount shall be paid to the applicant/complainant herein within three months. Considering the facts of the case and further considering that the cheque for sum of Rs. 1,00,000/- which was issued by the respondent, got dishonoured, therefore, the respondent is sentenced to pay fine of Rs. 1,20,000/-. The aforesaid amount shall be paid to the applicant/complainant herein within three months. If the amount is not paid within a period of three months, the accused/respondent to undergo Rigorous Imprisonment for six months. 21. The Acquittal Appeal stands disposed of accordingly. 22. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance.