The burden of proof for the petitioner in a case under Section 138 of the N.I. Act is to establish the existence of a legally enforceable debt beyond reasonable doubt.

JUDGMENT

1. The present petition is filed under section 378(1) of Cr.P.C. seeking special leave to appeal against the impugned order dated 10.01.2017 passed by learned MM (N.I. Act)-04, South East District, Saket Courts, New Delhi in the criminal complaint No.614484/16.

2. The facts of case as stated in the present petition are that respondent no.2 approached petitioner for a friendly loan of Rs. 3,15,000/- (Rupees Three Lakh Fifteen Thousand Only) in April-July, 2012 and due to good relations with respondent no.2, petitioner gave loan to him with the assurance that he shall return the said amount as early as possible. After much persuasion and request to respondent no.2 for clearance of outstanding amount of Rs. 3,15,000/-, respondent no.2 issued a cheque bearing No.208135 dated 05.01.2014 for a sum of Rs.2,95,000/- drawn on Punjab & Sind Bank, Kalkaji, New Delhi in favour of petitioner. However, on presentation of the cheque, it was dishonoured due to ''insufficiency of funds'' which was informed to the petitioner vide cheque return memo report dated 21.01.2014. The petitioner by means of legal notice dated 04.02.2014 called upon respondent no. 2 to make payment of the cheque amount within 15 days from the date of receipt of notice. Since there was no response from respondent no.2, petitioner instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the court of Ld. MM with a prayer to summon, try and punish him for the offence committed. Thereafter, notice under Section 251 Cr.P.C. was framed against respondent no.2. The respondent no, who filed an application under Section 145(2) NI Act which was allowed by the Ld. MM on 21.09.2015.

3. Further case of petitioner is that she examined herself as CW-1 by way of affidavit and also cross examined and discharged. After the evidence of petitioner, respondent no.2 was examined under Section 313 Cr.P.C. wherein all the incriminating evidences were put to him and he denied the same. Consequently, respondent no.2 examined himself as DW-1 and he was cross examined and discharged. Respondent no.2 in order to rebut the presumption had relied upon a cheque book allegedly bearing the receiving from the petitioner and legal notice dated 04.10.2013 without any proof of service. Thereafter, the learned MM vide impugned judgment dated 10.01.2017 acquitted respondent no.2 for the offence under section 138 of the N.I. Act.

4. The present petition is filed on the ground that impugned order dated 10.01.2017 is ex facie contrary to the law and perverse and is wholly unjust and the same is liable to be set aside. Learned MM has erred by ignoring the statement of respondent no.2 recorded under Section 313 Cr.P.C. wherein he has clearly admitted that loan was taken from the petitioner amounting to Rs. 3,15,000/- during the period of April to July 2012 and has further admitted to have issued the cheque in question in favour of petitioner. Moreover, Ld. MM has also overlooked the notice framed under Section 251 Cr.P.C. against respondent no.2 wherein he has admitted to have taken a loan from the petitioner though he alleged to have taken loan of Rs. 1,50,000/- and set up the defence of issuing the cheque in question as security for the loan.

5. Learned counsel for the petitioner submits that learned MM has failed to appreciate the law that defence of security necessarily stipulates that repayment has been made by the borrower but in the present case respondent no.2 has miserably failed to prove repayment of loan amount to the petitioner. The court below has erred in law in believing testimony as well as the documents produced by respondent no.2 as a gospel truth without requiring him to prove the same in contravention of the law of evidence. It is further submitted that decision of Ld. MM is solely on the basis of two documents produced by respondent no.2 which are one; a cheque book which is Exhibit DWl/B alleged to be bearing signatures of the petitioner and the other; le