JUDGMENT

1. The appellant/complainant is challenging the judgment of acquittal passed by Civil Judge & JMFC, Afzalpur in C.C.No.37/2015, dated 27.11.2020 for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act').

2. The parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

3. The factual matrix leading to the case of complainant can be stated in nutshell to the effect that the accused was in need of money in the month of September 2014 and approached the complainant for loan of Rs.5,00,000/-. The complainant was not having that much of cash and having only Rs.4,58,000/-. The accused has accepted the said money and gave post dated Cheque dated 22.12.2014 bearing No.73306 drawn on State Bank of India of Afzalpur Branch on the account maintained by him under A/c. No.30658929768. The complainant has presented the said Cheque on 22.12.2014 and the same was bounced for want of sufficient funds in the account. The complainant has issued Demand Notice dated 23.12.2014. The same has been returned on 30.12.2014 with the endorsement that accused has refused to receive the same. The accused has failed to pay the money covered under the Cheque and has also not replied to the notice. The complaint is filed on 23.01.2015.

4. In response to the summons, the accused has appeared through counsel and contested the case. The complainant in order to prove his case relied on the oral evidence of PWs.1 and 2 and the documents as per Exs.P1 to P9. The accused has relied on the evidence of DWs.1 and 2 and the documents as per Exs.D1 and D2. The Trial Court after having heard the arguments of both sides and on perusal of oral and documentary evidence has acquitted the accused from the charge leveled against him for the offence under Section 138 of N.I. Act.

5. The appellant/complainant has challenged the correctness and legality of the said judgment of acquittal contending that issuance of Cheque and signature on it is admitted by the accused and thus complainant has discharged his initial burden of proving that the Cheque in question was issued for lawful discharge of debt. However, the trial Court has committed error in believing the rebuttal evidence of accused and the finding recorded by the trial Court to displace the presumption available in favour of complainant is erroneous and cannot be legally sustained. The trial Court has committed error that non-mention of date and time about giving loan to accused would create serious doubt about issuance of Cheque by accused would be fatal to the case of complainant. The complainant has specifically pleaded in the complaint averments about the ready cash available with him. However, the trial Court for non-production of Account Statement has erroneously held that complainant has failed to prove the financial capacity to lend the money to accused. The approach and appreciation of oral and documentary evidence by the Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to convict the accused for the charge leveled against him.

6. In response to the notice of appeal, respondent has appeared through his counsel.

7. The trial Court records have been secured.

8. Heard the arguments of both sides.

9. The appellant/complainant in support of his oral evidence about issuance of Cheque by accused for legally enforceable debt has relied on the Cheque - Ex.P1 dated 20.12.2014 drawn on State Bank of India, near Bus-Stand Afzalpur Branch for Rs. 4,58,000/-. The complainant has presented the said Cheque for collection through his banker. The same was bounced for want of sufficient funds in the account of accused vide bank endorsement - Ex.P2 on 22.12.2014. The complainant has issued demand notice - Ex.P3 dated 23.12.2014. The same is returned with endorsement as addressee refused to receive the same as per Ex.P4. The original notice contained in the said envelop is marked as Ex.P