To establish an offence under Section 138 of the Negotiable Instruments Act, the complainant must prove that the cheque was issued towards discharge of a debt or liability due by the accused.

JUDGMENT

John Michael Cunha, J. - This appeal is by the complainant challenging acquittal of the respondent/accused for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I. Act, for short).

2. Heard learned counsel for appellant and learned counsel for respondent. Perused the records.

3. Appellant (hereinafter referred to as complainant) instituted a proceedings against the respondent (hereinafter referred to as accused) under Section 138 of N.I. Act for dishonour of cheque bearing No. 201769 dated 11.12.2012 for a sum of Rs. 1,50,000/-.

4. The case of the complainant is that the accused approached the complainant and availed hand loan of Rs. 1,50,000/- and towards repayment of the said amount issued, the subject cheque which came to be dishonoured when presented for encashment, as 'funds insufficient'. Statutory notice issued by the complainant was not complied by the accused. Thus, the complainant sought prosecution of the accused.

5. The accused did not reply to the notice issued by the complainant. However, during the course of trial took up a defence that she did not borrow Rs. 1,50,000/- from the complainant at any time. Further, she took up a plea that she was purchasing clothes from the complainant on credit basis and in respect of the said transaction complainant has taken signed blank cheque from her and the same has been made use by the complainant to foist a false case against her.

6. On considering the evidence adduced by the complainant and the accused, learned Magistrate was of the opinion that the complainant failed to prove that the cheque in question was issued by the accused towards repayment of legal debt of Rs. 1,50,000/- and that he had sufficient source of income for advancing a sum of Rs. 1,50,000/- to the accused and with this reasoning, the learned Magistrate dismissed the complaint and consequently, acquitted the accused.

7. Learned counsel for the appellant/complainant while taking me through the evidence let in by the parties pointed out that accused has not disputed the issuance of the cheque. She has also admitted her signature on Ex. P1 cheque. Under the said circumstances, by drawing the presumption attached to the cheque and in view of the failure of the accused to reply to the notice, the learned Magistrate ought to have convicted the accused. Further, he pointed out that accused failed to produce any cogent evidence to show that the cheque in question was issued by her as security in respect of the cloth business and in that view of the matter also trial Court has committed an error in acquitting the accused.

8. Learned counsel for the respondent/accused however, argued in support of the impugned judgment contending that the learned Magistrate has appreciated the oral and documentary evidence in proper perspective. The complainant having failed to substantiate that he had advanced a sum of Rs. 1,50,000/- to the accused as stated in the complaint, learned magistrate has rightly rejected the complaint. The accused has probabilized her defence that there was no other transaction between her and the complainant except the cloth business, and the complainant himself having admitted that a sum of Rs. 7,000/- was still due to him in respect of the cloth business, learned Magistrate was justified in dismissing the complaint and acquitting the accused.

9. I have bestowed my careful consideration to the submissions made at the bar and carefully scrutinized the material on record.

10. The accused has not disputed the fact that the cheque in question bears her signature and the same has been issued from the account maintained by her. There is also no dispute that the subject cheque has been dishonoured for reasons of insufficient funds to the credit of the accused. But, in order to make out the offence under Section 138 of N.I. Act, complainant is required to establish that the cheque in question was issued by the accused towards discharge of debt or liability due