The burden to prove that the Accused has committed the offence lies on the Complainant, and in this case, the Appellant failed to establish by acceptable evidence that the subject cheque was issued in discharge of a legally enforceable debt or liability.

C.V. Bhadang, J.

1. By this Appeal, the Appellant/Original Complainant is taking exception to the Judgment and Order dated 08.08.2012, recorded by the learned Judicial Magistrate First Class, Vasco da Gama, in Criminal Case No. 94/OA/NIA/2011/C by which the Respondent-Accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, ('Act', for short).

2. Briefly stated, it was the case of the Appellant that on account of friendship, the Appellant had accommodated the Respondent in the sum of Rs. 1,70,000/-. In the complaint filed before the learned Magistrate, the Appellant has set out the details of the payment which were made to the Respondent from time to time from December 2010 to May 2011. The Appellant further claimed that towards repayment of the said amount, the Respondent had issued a cheque bearing No. 231641 dated 15.09.2011 for a sum of Rs. 1,70,000/- in favour of the Appellant. The said cheque was drawn on Centurion Bank Ltd., Vasco da Gama branch. When the said cheque was presented for encashment through UCO Bank, the same was dishonoured with the endorsement that the concerned account of the Respondent was closed. The Appellant thereafter issued a statutory notice which was returned unclaimed. Thus, on account of the failure of the Respondent to pay the amount inspite of the issuance of the notice, the Appellant filed the complaint under Section 138 of the said Act before the learned Magistrate.

3. At the trial, the Appellant examined himself and produced the subject cheque and the copy of the legal notice (Exhibit 19) along with the registered envelope (Exhibit 20). The Appellant also examined one Krishna Venkatesh Shenvi, the Branch Manager of UCO Bank, Vasco da Gama Branch. In defence, the Respondent examined himself apart from Smt. Swati Naik (Dw.2), Asst. Branch Manager of Lokmanya Multipurpose Co-operative Society and Shri Sameer Lotlikar, (Dw.3), the Branch Manager of H.D.F.C. Bank, of Vasco Branch.

4. The learned Magistrate came to the conclusion that the Appellant had failed to prove that the subject cheque was issued for a legally enforceable debt or liability. In the face of the finding, the learned Magistrate held that the Appellant had failed to prove that the Respondent had committed an offence punishable under Section 138 of the said Act. In that view of the matter, the Respondent came to be acquitted. Feeling aggrieved, the Appellant is before this Court.

5. I have heard the learned Counsel appearing for the Appellant. There is no appearance on behalf of the Respondent. With the assistance of the learned Counsel appearing for the Appellant, I have perused the evidence and the impugned Judgment.

6. It is submitted by the learned Counsel appearing for the Appellant that the Respondent had not issued any reply to the notice issued by the Appellant. It is submitted that although the Respondent had raised defence that the Appellant had misused the cheque which was in fact given as a blank cheque while the Respondent had obtained a loan from the Lokmanya Co-operative Credit Society in July, 2008, where the Appellant was serving as a Manager at the relevant time, the Respondent had failed to lodge any complaint with the police about the alleged misuse of the cheque. It is further submitted that there is no document to show that the Respondent had handed over twelve blank cheques when he had obtained a loan of Rs. 25,000/- from the Lokmanya Co-operative Credit Society in July 2008. It is further submitted that it is unlikely that the Appellant would be able to obtain a blank cheque from the record of the said Credit Society and then misuse the same for his own purpose. Learned Counsel has submitted that the defence raised by the Respondent is not probable and the learned Magistrate was in error in holding that the Respondent has probabilised his defence. It is submitted that the learned Magistrate has also failed to see that the amount of Rs. 1,70,000/- was no