The burden on the complainant in a complaint under Section 138 of the Negotiable Instruments Act is to prove the delivery of the cheque and the existence of a legally enforceable debt.

JUDGMENT :

1. Heard the respective counsels.

2. The applicant/original complainant has preferred this criminal revision application against the acquittal of the respondent No.2/accused vide order dated 30.10.2004 passed by the learned Additional Sessions Judge, Omerga, in Criminal Appeal No.16 of 2004 (Old No.4 of 2003).

3. For convenience, the applicant would be referred to as the 'complainant' and 'respondent No.2' as 'accused'.

4. The brief facts of the case were that the complainant had filed a complaint against the accused under Section 138 of the Negotiable Instruments Act (N.I. Act for short). He had a case that the accused was in need of money. Hence, on 05.07.2001, he obtained a hand loan of Rs.10,000/- from him and against the repayment, a cheque in dispute was delivered to him. The cheque in dispute was drawn on District Central Co-operative Bank Ltd., Branch Lohara, District Osmanabad. It was a postdated cheque. After one month, the accused requested the complainant that he could not arrange for the money. Hence, he sought the additional time of one month. Thereafter, the accused sought time on two occasions. Lastly, the time was extended till 31.12.2001. However, the accused could not arrange for the money. Hence, on 31.12.2001, the cheque in dispute was presented to the bank for encashment. The cheque was returned with the reason "Funds Insufficient". The statutory notice was issued. Accused had replied to the notice.

5. The accused did not deny the issuance of the cheque in dispute. Only the dispute was that the cheque in dispute was not delivered against the hand loan, as pleaded in the complaint.

6. The complainant, in his verification statement before the issue of process and evidence, came with a story that the cheque in dispute was issued for keeping Rs.10,000/- by the accused that was to be returned to him from the deposit given at the time of hiring the premises owned by the wife of accused. The time was given to the accused to make arrangements, but he did not. Hence, he presented the cheque for encashment.

7. In a nutshell, the accused did not deny the issuance of the cheque in dispute. However, the defence of the accused, as extracted from his cross-examination of the complainant, was that after issuing the cheque in dispute, his wife told him that the complainant had not paid the agreed rent for the whole period of his stay in the premises. Hence, they went to him and asked him to return the cheque in dispute and pay the remaining rent of Rs.4000/- and adjust Rs.10,000/- which was to be returned to him. However, the complainant did not return the cheque in dispute and misused it. A civil suit was also filed to recover the remaining rent of Rs.4000/-. The complainant admitted filing of the Civil suit.

8. On the facts discussed above, the learned Magistrate believed the complainant and held the accused guilty and convicted him. However, in his impugned judgment and order, the learned Additional Sessions Judge disbelieved the complainant as he came with a different story. He also held that the story put forth in the complaint is not at all supported by the evidence brought on record, but the learned Trial Court failed to attach adequate importance to this vital infirmity in the case of the complainant. There appears justification for the refusal of the complainant's case by the accused as absolutely no evidence came on record to substantiate the case of advancement of hand loan to the accused. Merely, the issuance of a cheque is not in dispute and dishonour of it is also beyond defect. Hence, the accused cannot be convicted.

9. Learned counsel for the complainant has vehemently argued that the accused admitted the issuance of the cheque in dispute. However, story of the accused of issuing cheque as security is improbable. He had no reason to issue the cheque in dispute as a security. The admission of the accused, issuing the cheque and issuing the receipt is the relevant material to believe the complainan