The complainant must prove the legally enforceable debt and the source of funds to establish a case under Section 138 of the NI Act.

JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

1. This appeal is filed by the appellant-original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 10.06.2014, passed in Criminal Case No. 127 of 2005 by the learned Judicial Magistrate First Class, Prantij, recording the acquittal.

2. Nutshell facts are that appellant-original complainant-Rameshkumar Vitthalbhai Patel, lodged a complaint before the Court that the respondent No. 2 herein had borrowed Rs. 20,00,000/- from him for personal use and assured to repay within a month or one and half months and for the same, he issued a Cheque bearing No. P.698868 dated 17.11.2004 drawn on The Sabarkantha District Central Co-op. Bank Ltd. Prantij Branch of Account No. 8091, which, the complainant presented in bank, but the same was returned by the bank with an endorsement “Account Closed” and hence, the complainant issued a legal notice dated 07.12.2014 to the respondent No. 2 through his advocate by RPAD and UPC, which though served upon the respondent No. 2 on 11.12.2014, the respondent No. 2 did not repay the said amount and gave vague reply on 15.12.2004, the complainant was constrained to file complaint before the competent Court at Prantij under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”).

2.1 Upon such complaint being filed and subsequent to service of summons, the respondent No. 2 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. In support, the appellant-complainant has produced oral as well as documentary evidence. Vide impugned judgment and order dated 10.06.2014, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant-original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. Yatin Soni for the appellant-original complainant, learned advocate Ms. Devangi Solanki for learned Advocate Mr. N. V. Gandhi for the respondent No. 2 and learned APP Ms. Jirga Jhaveri for the respondent No. 1-State.

3.1 The learned advocate for the appellant-original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented before the bank with an endorsement “Account Closed.” Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant. Further, the signature on the cheque was also not in dispute. In his submission, the learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him.

3.2 The learned advocate for the appellant further submitted that three conditions to constitute an offence under Section 138 of the NI Act viz. (i) cheque ought to have been presented in the bank within six months or within its validity, (ii) holder in due course ought to have make demand by giving notice in writing within 30 days on receiving information as to return of cheque and (iii) drawer of the cheque should have failed to make payment within 15 days of receipt of such notice, are satisfied and fulfilled by the appellant, however, the learned trial Judge failed to consider this aspect of the matter in true and proper perspective.

3.3 The learned advocate for the appellant-complainant submitted that the cheque in question was issued on 05.10.2004 (PDC), which was dated 17.11.2004 and on that day i.e. 05.10.2004, the account was very much in force and subsequently, the account came to be closed by the respondent-accused, which clearly shows mala-fide intention on the part of the respondent-accused, however, the learned trial Judge has failed to appreciate such an important aspect of the matter.

3.4 Moreover, the learned advocate for