IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3404 of 2009 Arun v. Bandu and anr ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr R.S. Deo, Advocate for applicant Mr A.N. Naik, Advocate for R-1 Mr C.N. Adgokar, APP for R-2 Coram : A.P. Bhangale, J Dated : 9th March 2010 1. Heard learned counsel for the parties. By this application, applicant is seeking leave to file appeal challenging judgment and order dated 30th July 2009 passed by learned Addl. Sessions Judgge, Yavatmal in Criminal Appeal No. 59 of 2007 whereby accused was acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act. 2. Facts in brief which led to filing of appeal are that cheque bearing no. 65029 drawn on Yavatmal Gramin Bank for a sum of Rs. 50,000/- dated 22.8.2000 which was presented by the complainant through Yavatmal Mahila Sahakari Bank Limited for encashment on 30th August 2000, returned dishonoured with remarks of the Bank “payment stopped by drawer”. In respect of the cheque the complainant had demanded the amount of Rs. 50,000/- by demand notice dated 13.9.2000 which was received by the accused on 14.9.2000. Prompt reply was given to the notice on behalf of the accused controverting the demand on the ground that that the accused had specifically informed his bank to stop the payment on the basis of cheque in question and other two cheques. After the cheques were lodged, information was given in writing to Manager of Yavatmal Gramin Bank on 17.9.1999 as also thereafter to Yavatmal Mahila Sahakari Bank and Yavatmal Urban Cooperative Bank were also informed about loss of cheques. Preventive action was taken by accused to stop payment on the basis of said two cheques including the cheque in question. Under these circumstances, the accused had by reply to the demand notice dared the complainant to prosecute him under Section 138 of the Negotiable Instruments Act indicating his competency to oppose the case in Court. 3. I have considered submissions at the bar and perused. the judgment and order under challenge with reference to evidence on record. Although there appears no dispute regarding signature of the accused on the cheque and also about presentation of cheque by complainant, the remarks from the Bank that payment was stopped by the drawer, is very much relevant as also prompt reply to the notice issued from complainant on 13.9.2000 to which reply was dated 15.9.2000. It is also pertinent to note that Bank officials from drawee Bank was examined in order to bring clear evidence on record that intimation regarding “stop payment” was given on 20th September 1999 in respect of cheques bearing no. 65029, 65030, 65031. The cheque in question in this case is bearing number 65029 (exh. 38) which was allegedly stolen and in respect of which intimation of “stop payment” was issued to the banker. Thus, the reason for return of cheque dishonoured was the intimation received from the accused to stop the payment of the lost cheque. Bank Officer Gautam Taksande gave evidence as to how payment was stopped by drawer and reasons why the cheque was returned dishonoured from the Bank. 4. Appellate Court appears to have decided the appeal on the ground that the complainant did not prove the fact that there was legally enforceable debt on 22nd August 2000 i.e. on the date of issuance of cheque on the basis of consistent and probable defence of the accused. 5. Learned Advocate for the applicant contended that there are statutory presumptions available for the complainant in such cases under Sections 118 and 139 of the N.I. Act. He made reference to following rulings : (1) M/s N.M.T.C. Ltd and anr v. M/s Medchl Chemicals and anr reported in 2002 Cri.L.J. 266. (2) Joitaram K. Patel v. State of Gujarat and anr reported in 1999 (1) Crimes 467. (3) Smt Rukhmini Vishwanath v. Shrinivas reported in 2010 Cri.L.J. 748. (4) M/s Steel Authority v. B.D. Aggarwal reported in 2002 (1) Crimes 452. (5) Sushil Kumar v. Damodar reported in 1999 (1) Crimes 491. (6) Sanjay Mishra v. Kanishka Kapoor and anr reported in 2009 (5) Bom.C.R. 464. (7) S. Parmeshwarappa & anr v. S. Choodappa reported in 2007 Cri.L.J. 586. (8) Sunil Srivastava v. Ashok Kalra reported in 2003 Cri.L.J. 1443. 6. On the applicant’s own showing with reference to the ruling, there is no presumption under Section 139 of the N.I. Act that debt is a legally recoverable debt. Accused by examining witness in this case from the drawee bank, brought evidence on record regarding the intimation received from the accused to stop payment of three cheques including the cheque in question and succeeded to raise defence upon preponderance of probability which resulted into shifting onus upon the complainant to prove the existence of legally enforceable debt or liability. However, it appears that after the evidence of bank official made on behalf of the accused, complainant did not lead any evidence to the effect that positive finding can be recorded for offence having been proved under Section 138 of the N.I. Act against the accused. It is settled legal position that existence of legally recoverable debt is not a matter of presumption under Section 139 of the N.I. Act. Once the accused has succeeded to raise probable defence in the course of trial for offence punishable uneder Section 138 of the Act, it is left to the complainant to establish the fact that there existed legally recoverable debt payable by the accused to the complainant on the date of cheque in question. One may refer to the judgment of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in AIR 2008 SC 1325 to find this settled legal position. 7. Under these circumstances, the appellate Court was justified to direct acquittal of the accused,. No ground is made out to interfere with the finding of acquittal. Application seeking leave is rejected and consequently, appeal stands dismissed. Judge. Hsj