Crl.A. 61/2003 BEFORE HON’BLE MR JUSTICE B D AGARWAL This appeal under Section 378 of the Code of Criminal Procedure, 1973, (hereinafter, referred to as the CrPC , in short) has been filed by the Regional Manager of Assam Financial Corporation, Tezpur Branch, assailing the im pugned Judgment dated 19.09.2002, passed by the learned Additional Chief Judicia l Magistrate, Sonitpur at Tezpur in CR No. 67 of 2000. By the impugned Judgment, the learned Magistrate has acquitted the accused from the offence under Section 138 of the Negotiable Instrument Act (hereinafter, referred to as the N I Act , in short). Being aggrieved with the impugned Judgment, the complainant has pre ferred this appeal. 2. Heard Smt T Goswami, learned counsel for the appellant and Sri S C Biswas, learned counsel for the accused/ respondent. The case was taken up fo r hearing on 29.07.2010, and on that day, neither the appellant nor the responde nt was represented by their counsel and as such, Sri B S Sinha, learned Addition al Public Prosecutor was appointed as Amicus Curiae and he was heard. Today also , I have taken his assistance. 3. After going through the Judgment, it appears to me that the accu sed has been acquitted primarily on the ground of non-examination of Bank Office rs to prove that the cheque was deposited in their Bank and that the same was di shonoured due to insufficiency of fund. 4. In my considered opinion, it was not proper for the trial Court to acquit the accused on such flimsy ground. It is the settled position of law t hat a fact can be proved from any other corroborative evidence. Besides this, Se ction 114 of the Evidence Act also permits the Court to presume existence of cer tain facts. 5. The above apart, the legal position to prove an offence under Se ction 138 of the NI Act stands on different footing. Under Section 139 of the NI Act, the Court can take presumption in favour of the holder of the cheque, unle ss contrary is proved by the accused person. Section 140 of the NI Act, also sti pulates that an accused may not be allowed to raise defence that he had no reaso n to believe that the cheque will be dishonoured on presentation in the Bank. De spite referring to Section 139 in the impugned Judgment, the trial Court did not use the same in proper perspective. After going through the Judgment and eviden ce tendered by the complainant, it appears to me that virtually there was no den ial about the enforceable liability on the part of the accused nor any defence w as taken about the genuineness of the signature on the cheque. The only alibi ta ken by the accused was that the cheque was forcibly taken by the PW-1 and the sa me was not produced in the Bank. 6. It is the settled principle of law that if an alibi is taken by the accused the same has to be proved by giving cogent evidence. In the present case, except giving suggestions to the witnesses no evidence in defence was give n. Similarly, the report from the Indian Overseas Bank (Exhibit - 4) to the Punj ab National Bank, Tezpur Branch, Tezpur, with regard to dishonour of cheque on t he ground of insufficiency of fund, was also not challenged. The complainant’s w itnesses were also not given any suggestion that the Exhibit - 4 is a forged rep ort. Hence, the defence suggestion that the cheque was not deposited in the Bank , cannot be accepted. 7. For the foregoing reasons, I hold that it is a fit case, which r equires fresh decision. Accordingly, the impugned Judgment is hereby set aside. The case is remanded back to the learned Additional Chief Judicial Magistrate, S onitpur at Tezpur, for deciding the same afresh in accordance with law. 8. Accordingly, the appeal stands disposed of with the aforesaid di rections.