Accused must surrender for sentencing as court dismisses petition citing statutory presumption.

The court upheld the lower courts' decisions, dismissing the petition and directing the accused to surrender for sentencing. The defense's arguments failed to rebut the statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act. The court found the accused's explanations insufficient, emphasizing the importance of proof over mere explanations. All pending applications were disposed of, and bail bonds were canceled.

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Issues Involved
1. Legally enforceable debt under Section 139 of the Negotiable Instruments Act.
2. Examination of friends who allegedly lent money to the complainant.
3. Loan advancement in violation of Section 269SS of the Income Tax Act.
4. Non-disclosure of the loan in the complainant's Income Tax Return.
5. Re-appreciation of evidence by the trial court after remand.
6. Issuance of cheque as security versus discharge of lawful liability.
7. Capacity of the complainant to lend money.

Issue-Wise Detailed Analysis

1. Legally Enforceable Debt under Section 139 of the Negotiable Instruments Act:
The court reaffirmed that Section 139 of the NI Act mandates a presumption that the cheque was issued for the discharge of any debt or liability, unless the contrary is proved. The accused admitted to issuing the cheque and did not dispute the signatures, thus invoking the presumption under Sections 118 and 139 in favor of the complainant. The court cited the Hon'ble Apex Court's ruling in *Hiten P. Dalal v. Bartender Nath Bannerji*, emphasizing that the presumption must be rebutted by proof, not mere plausible explanations.

2. Examination of Friends Who Allegedly Lent Money to the Complainant:
The complainant testified that he borrowed money from friends to lend to the accused. The court noted that no suggestion was made during cross-examination regarding the source of money, and the complainant's testimony remained unchallenged. The accused failed to examine these friends or provide evidence to counter the complainant's claims.

3. Loan Advancement in Violation of Section 269SS of the Income Tax Act:
The defense argued that the loan was advanced in violation of Section 269SS of the IT Act, making it non-recoverable. However, the court did not find this argument sufficient to rebut the presumption under Section 139 of the NI Act.

4. Non-disclosure of the Loan in the Complainant's Income Tax Return:
The defense also argued that the loan was not shown in the complainant's Income Tax Return. The court held that this alone does not rebut the statutory presumption under Sections 118 and 139 of the Act, especially when the issuance of the cheque and the signatures were admitted.

5. Re-appreciation of Evidence by the Trial Court after Remand:
The court held that the trial magistrate was within its jurisdiction to re-appreciate the evidence after the case was remanded for fresh consideration. The court had earlier set aside the acquittal, noting that the trial magistrate had not correctly applied the law. The re-evaluation of evidence was necessary and lawful.

6. Issuance of Cheque as Security versus Discharge of Lawful Liability:
The accused claimed the cheque was issued as security, not for a lawful liability. However, the court found no evidence to support this claim. The complainant's testimony and the lack of a reply to the legal notice strengthened the presumption that the cheque was issued for a legally enforceable debt. The court cited the Hon'ble Apex Court's decision in *M/s Laxmi Dyechem vs. State of Gujarat* to support this conclusion.

7. Capacity of the Complainant to Lend Money:
The court found that the complainant, a government employee earning Rs. 33,000 per month, had the capacity to lend the money. The defense did not effectively challenge this during cross-examination. The court referenced the Hon'ble Apex Court's rulings in *Basalingappa vs. Mudibasappa* and *Rohitbhai Jivanlal Patel vs. State of Gujarat & Anr*, which emphasize that the burden shifts to the accused to disprove the complainant's financial capacity once the statutory presumption is invoked.

Conclusion
The court dismissed the petition, upholding the judgments of the lower courts. The accused was directed to surrender and serve the sentence. The court found no merit in the arguments presented by the defense and concluded that the statutory presumption under Sections 118 and 139 of the NI Act was not rebutted. All pending applications were disposed of, and bail bonds were canceled.

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