MUKTA GUPTA, J.

1. The present appeal is directed against the judgment dated 12th October, 2015 passed by the learned Metropolitan Magistrate in CC No. 868/2013, titled as Brijesh Kumar v. Santosh Kumar Singh, whereby the said complaint preferred by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘NI Act’) was dismissed and the respondent/accused was acquitted.

2. Briefly, the facts as per the appellant are that the respondent approached the appellant in April, 2013 for a friendly loan of Rs. 14,40,000/- due to his emergent need. Appellant advanced the aforesaid loan with an interest @ 10%. However, the respondent failed to make the payment despite repeated reminders. In July, 2013, respondent issued a cheque bearing No. 12282 dated 8th July, 2013 drawn on Union Bank, Sundar Nagar for Rs. 14,40,000/- in favour of the appellant. Aforesaid cheque was returned vide return memo dated 27th August, 2013 with endorsement "Funds Insufficient". Despite legal notice dated 14th September, 2013, the respondent did not make any payment in discharge of his liability. Thus, the complaint was preferred.

3. Pre-summoning evidence was closed vide order dated 11th December, 2013. Notice under Section 251 Cr.P.C. was framed on 20th March, 2014 to which the respondent pleaded not guilty and claimed trial.

4. Appellant was examined as CW-1. He reiterated the contents of the complaint in his evidence by way of affidavit vide Ex.CW-1/A. The complaint was proved vide Ex. CW-1/6, original cheque bearing No. 12282 dated 8th July, 2013 vide Ex. CW-1/1, return memo dated 27th August, 2013 as Ex.CW-1/2, legal notice dated 14th September, 2013 as Ex.CW-1/3, original postal receipt as CW-1/4 and net tracking report as Ex.CW-1/5.

5. To prove the source of funds for advancing the loan to the respondent, appellant examined two more witnesses namely Devender Singh (CW-2) and Raj Kumar (CW-3).

6. Devender Singh in his affidavit by way of affidavit (Ex.CW-2/1), stated that he was the cousin brother of Brijesh Kumar. That built up property bearing No. C-26B on a land area measuring 40 sq. yards i.e. 33.44 mtrs situated in abadi land of Mandawali Unchepur was sold to Smt.Krishna Devi and part sale proceeds of the said property went to the share of Brijesh Kumar by way of family partition. The said property was sold for a sum of Rs. 22 lakhs. Out of total sale proceeds, Rs. 8 lakhs was received vide cheque No. 162130 dated 11th April, 2011 drawn on State Bank of India, Rs. 5 lakhs was received vide cheque No. 432498 dated 11th April, 2011 drawn on Punjab National bank and balance of Rs. 9 lakhs was given in cash. Aforesaid cheques were proved vide Ex.CW-2/B.

7. Raj Kumar in his evidence by way of affidavit (Ex.CW-3/1), stated that he was one of the attesting witnesses of all the documents executed between Devender Singh and Smt. Krishna Devi. He corroborated the version of Devender Singh.

8. Respondent, in his statement under Section 313 Cr.P.C. denied taking any loan of Rs. 14,40,000/- from the appellant. He also stated that the cheque in question was issued to the appellant as security for two committees which were being run by the appellant for a sum of Rs. 6,00,000/- each about 3 years ago approximately and he had given the cheque in blank signed condition.

9. Respondent examined himself as DW-1 wherein he reiterated the defence taken by him in his statement recorded under Section 313 Cr.P.C.

10. Learned counsel for the appellant submits that the capacity to pay loan has been duly proved. Appellant's uncle's son i.e. Devender Singh gave loan to the appellant which he gave to the respondent. Nothing has been elicited from the cross-examination of Devender Singh and Raj Kumar. The text message wherein the respondent admitted owing money to the appellant is exhibited as Ex.CW-1/7 which document has been admitted by the respondent in his cross-examination.

11. On the other hand, learned counsel for the respondent submits that there ar