The burden of proof on the complainant to establish himself as the holder in due course and the nature of the debt or liability is essential for the offence under Section 138 of the Negotiable Instruments Act, 1881.

JUDGMENT :

1. This acquittal appeal has been preferred by the appellant against the judgment dated 05.08.2011 Passed by the learned Judicial Magistrate First Class, Bilaspur (C.G.), in Complaint Case No. 11/2011 by which respondent herein has been acquitted of the charge punishable under Section 138 of Negotiable Instrument Act, 1881.

2. It is an undisputed fact that both parties are relatives and acquainted with each other. It is also an undisputed fact that the cheque No. 003402 of Rs.18,00,000/- (Eighteen Lakhs Only) of I.D.B.I. Bank dated 28.05.2010 was dishonoured on 09.11.2010 (Ex.-C-1). For which appellant Virendra Kumar Bharadwaj sent a legal notice (Ex.-C-5) for recovery of the said amount, but the respondent/accused has not given any reply nor given the said amount.

3. The prosecution story, in brief, is that accused Pundas Anchal borrowed Rs.18,00,000/- from the appellant for purchase of a plot. Since the accused was a relative who had cordial relations with the appellant and was a government servant therefore the appellant gave the said amount to the accused/respondent. The accused assured to return the said amount within two months but the accused did not return the said amount within the said period. Thereafter, on the repeated demand of the appellant, the accused issued a cheque in question Ex.-C-1 which was deposited in the bank vide Ex.-C-2 on 08.11.2010 but due to insufficient amount in the account the same was dishonoured. For which information was given to the appellant vide Ex.-C-3 on 09.11.2010. Thereafter, on 23.11.2010 vide Ex.-C-5 a notice was sent to the accused by the appellant. Thereafter, after serving the notice, when the accused did not pay the said amount, complaint case was filed.

4. On stating the crime details to the accused he denied the said crime and stated that he gave a blank cheque and he has no knowledge of dishonour of the cheque but the appellant sent a notice to the accused/respondent. The appellant examined himself and Jitendra Kumar Singh in his defence. After hearing both the parties, the trial Court found that the complaint was filed by Virendra Kumar Bhardwaj personally whereas the cheque in question Ex.-C-1 is in the name of “Bhardwaj Triaka Structural Eng.” and it was not established that the cheque in question was issued in the name of appellant and it is also not established by the prosecution witnesses that the cheque was issued in the name of appellant or the accused was borrowed the said amount from the appellant and the accused was acquitted from the aforesaid offence by the trial Court.

5. Learned counsel for the appellant submits that under Sections 118 and 139 of the N.I. Act, 1881 presumption of the case may be given to the appellant as the accused has admitted that he gave a blank cheque by signing it to the appellant, Therefore, the accused had to prove that the presumption made in favour of the complainant is not correct and should have refuted the presumption which has not been made. Therefore, the decision given by the trial Court is bad in law. He also submits that the appellant is the sole proprietor of “Bhardwaj Triaka Structural Eng.” in this situation if the appellant files a suit by his name, this may not affect the case of the appellant. In support of his argument, he placed reliance on the decision of Hon’ble Delhi High Court in the matter of Miraj Marketing Corporation v. Vishaka Engineering and Anr. Decided on 23.11.2004 and on the decision of Hon’ble High Court of Calcutta in the mater of Devendra Surana V. Bank of Baroda & Ors. Passed in W.P. No. 5521 (W) of 2017 on 12.12.2018.

6. None appeared on behalf of the respondent during the final argument in this case.

7. Heard learned counsel for the appellant and perused the material available on record including the impugned judgment.

8. After perusal of the material available on record, it is clear that the sign of the accused on the cheque in question Ex.-C-1 is not disputed. The second important thing is that