IMPORTANT POINT
The complainant must prove that the cheque was issued for a legally enforceable debt or other liability to establish an offense under Section 138 of the Negotiable Instrument Act.

ORDER :

1. This petition is filed under Section 378 (4) of the Code of Criminal procedure assailing the impugned judgment and order dated 29.01.2011 passed by Judicial Magistrate First Class, Bilaspur in Criminal Case No. 358/09, whereby the court below has acquitted the Respondent No. 1 of the offence under Section 138 of the Negotiable Instrument Act.

2. Brief facts of the case is that the non-applicant gave a cheque to the applicant of sum of Rs. 2,00,000/- and after assurance to make disbursement from the Bank, the applicant presented it in the bank and it is returned back with report that there is no sufficient amount in the account of the non-applicant. The applicant sent notice within time and requested to make payment of Rs. 2,00,000/- as the same was taken by the non-applicant. Therefore the appellant/complainant filed complaint under Section 138 of the Act.

3. Counsel for the appellant/complainant submits that court below have overlooked the evidence adduced by the appellant/complainant. He submits that the acquittal of the accused/respondent No.1 is improper, incorrect and bad in the eyes of law. He further submits that the trial Court has failed to consider the statement of the complainant Subhash Yadav and other witnesses who have supported the case of the complainant. Further, complainant has proved the facts that the accused has given the cheque and the same has been dishonored and returned back to the applicant due to insufficient fund. Lastly, he submits that the finding of the court below is perverse, erroneous and contrary to law.

4. Learned counsel appearing on behalf of Respondent No. 1 supported the impugned judgment and further submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the learned court below needs no interference.

5. On the other hand, counsel for the State supports the impugned judgment.

6. I have heard learned counsel appearing for the parties and perused the documents and other material available on record.

7. The ingredients of Section 138 of the Negotiable Instrument Act 1881, is as under:-

1. That there is a legally enforceable debt, or other liability,

2. That the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt;

3. Cheque so issued had been returned due to insufficiency of funds.

8. The trial Court acquitted the accused on the basis that complainant did not proved the cheque was issued for any debt or other liability of the respondent No. 1.

9. Complainant in his cross examination in para 15 deposed that the accused had asked for financial help in the year 2004 and then he has stated that on 11.03.2000 he had asked for Rs.2,50,000 from his father which was written on Rs.100 stamp paper. It is stated in paragraph 17 that the amount was given to the accused in front of Sanjay Maheswari, Tawere and Mahendra Dubey. It is stated in paragraph 18 that agreement (Ex. P-2) has his and Mahendra Dubey's signatures on it. Thus the signature of the declarant is not there in the declaration and the witness of the declaration is also not examined in the court. The contract is executed in relation to good behavior between the two parties. If one party does not have a signature in the document then the document is of no importance. The documents of (Ex. P-2) are said to have been stolen by accused Lalit Singh in this way the agreement becomes doubtful. The complainant has stated that Cheque Ex. (D-1) A to A bears his signature. There is no mention of Cheque (Ex. D-1) being given to him and the cheque (Ex.D-1) is a self cheque, if it is lost, the payee can present it at bank. In the notice (Ex. P-3) there is no mention of information that cheque No. 454297 was dishonoured and when information about that dishonor was received by the bank. Vinay Kumar Shukla has stated in paragraph 5 of his cross-examination that by looking at (Ex. D-1) it is not known wh