In a case under Section 138 of the N.I. Act, the burden of proof shifts to the appellant once the respondent raises a probable defense.

JUDGMENT :

1. The appellant is the original complainant, who is aggrieved by the judgment and order dated 30.10.2009 passed by learned Principal Judicial Magistrate First Class, Kapadvanj in Criminal Case No.2452 of 2006, whereby the order of acquittal of respondent No.2, has been recorded for the offence punishable under Section 138 of the N.I. Act.

2. This Court vide order dated 08.02.2010, had admitted the present appeal and had directed issuance of bailable warrant against the respondent No.2. The record indicates that bailable warrant has been duly executed upon the respondent No.2, however, respondent No.2 has chosen not to appear before this Court or to contest the criminal appeal. No appearance has been put forward on behalf of respondent No.2 despite being served with the bailable warrant. Considering the fact that present appeal relates to year-2009, this Court has proceeded for final hearing of the appeal in absence of respondent No.2.

3. The gist of the complaint of the present appellant is that the complainant and the accused were residing at the respective addresses shown in the cause title and were engaged in the agricultural activity. Since both the parties belong to the same community, they were known to each other and used to meet frequently because of which friendly relations existed between the parties.

3.1 It is the case of the complainant that the accused had approached the complainant before 9 to 10 months from the lodging of the complaint seeking financial help for the purpose of agricultural activity. It is contended by the complainant that an amount of Rs.1,70,000/- was sought for and the accused had also assured to repay such amount at the end of seasonal crop being sold by the accused.

3.2 It is further contended that the complainant had handed over such amount in cash to the accused. Since the complainant was in need of the money, the accused had given disputed cheque bearing No.5615165 of Dena Bank, Kapadvanj Branch for an amount of Rs.1,70,000/-. The complainant under bona finde belief of realization of the amount, had presented such cheque on 20.06.2006, which was not realized on the ground of “insufficient funds”. It is the case of the complainant that he had once again, approached the accused who had assured the complainant to present the cheque again after lapse of 15 days and he was assured of repayment of the aforesaid amount. In such circumstances, the complainant claims to have presented the cheque on 10.07.2006. It was once again dishonored on the ground of “insufficient funds”. The return memo was received from the bank mentioning the aforesaid reason. The complainant was, therefore, constrained to give legal notice under Section 138 of the N.I. Act dated 13.07.2006 which was duly served upon the accused. The complainant has placed on record the supporting documents in the nature of RPAD slip and the UPC slip. The accused had given vague reply to such legal notice and had raised defence of “lost” cheque. In absence of the realization of the amount, the complainant proceeded with lodging of the complaint under Section 138 of the N.I. Act before the court of learned Principal Judicial Magistrate First Class, Kapadvanj. The aforesaid complaint was registered as Criminal Case No.2452 of 2006.

3.3 The complainant was examined for the verification of the complaint. The summons were issued upon the respondent-accused, who had appeared before the trial court. The plea of accused was recorded, where he had denied the contents of the complaint. The case was treated as summary case. The learned Magistrate proceeded with the trial and the accused was tried for the offence punishable under Section 138 of the N.I. Act. Issue was framed by the learned Magistrate. The complainant had laid oral evidence as well as documentary evidence. The list of such evidence is reproduced as under:

Oral Evidence on beh