Present petition is directed by the complainant against the judgment dated 23/05/2013 passed by JMFC (FTC)
Bhopal in R.T No. 4918/2009 acquitting the respondent/accused of the charge under section 138 of Negotiable Instruments Act (in short NI Act), on the ground that cheque in question was not proved to have been issued for discharging any debt or legal recoverable liability by the respondent/accused.
Necessary facts, in short, are that on 26/10/2008 respondent signed and issued a cheque for Rs. 3,50,000/- payable at State Bank of India, Branch Vindhyachal Bhopal and asked the petitioner to submit the cheque after 15th November, 2008. On 18/11/2008 aforesaid cheque was bounced for want of funds, then on 15/12/2008 petitioner issued notice through his counsel and thereafter on 28/01/2009 preferred complaint in the Court of JMFC, Bhopal.
Learned counsel for petitioner/complainant submits that while signature of respondent on cheque is admitted then under presumption under section 139 NI Act burden shifts upon the respondent/accused to prove that consideration was not passed.
In support of the complaint statement of Brij Gopal Singh, the petitioner, was appreciated by the trial court and in defence respondent/accused himself stood as a witness and after comparing and considering both the statements, Trial Court has observed that petitioner/complainant failed to prove the transaction of Rs. 3,50,000/- between the parties. Rather it has come on record that blank cheque was signed in the year 2003 in a criminal case father of the petitioner offered as surety for 6 family members of accused in court of Magistrate. After 5 years of the aforesaid period, aforesaid cheque was misused by the petitioner. Trial Court has observed that in fact petitioner had no source of money so that he can give Rs. 3,50,000/- to the respondent/accused. There had been some discrepancies in ink and writing of the cheque also.
On careful perusal of record and cross examination of petitioner/complainant in para 18 it has come on record that Rs. 84,000/- was deposited by his father in his account and rest of the amount was given by his father to him in cash and that amount was given by him to the respondent/accused. In nutshell it is stated by him that Rs. 3,50,000/- was obtained by him from his father and then complainant gave it to the respondent/accused and against that amount accused/respondent has signed the cheque.
True it is while cheque is signed by a person then under section 139 NI Act presumption is available in favour of the receiver of cheque but this presumption is rebuttable. It has come on record that blank cheque was signed by respondent in the year 2003. While father of complainant stood as surety for his family members in a criminal case. There are discrepancies in ink and writing of the cheque. Complainant could not prove the fact that he had sufficient funds of his own to give money and in cumulative effect, the petitioner/complainant was found to have failed to prove that aforesaid cheque was signed and issued by the Respondent against the debt and liability legally recoverable.
Even otherwise in case of acquittal, if two views are possible then also benefit goes to the accused. I see no illegality or perversity in so far as appreciation of evidence of petitioner and respondent is concerned. No case of interference is made out. Accordingly this petition is dismissed.