The burden of proof in cheque dishonor cases under Section 138 lies with the complainant, who must establish the existence of a legally enforceable debt.

ORDER :

1. This application is filed under Section 378(4) of the Code of Criminal Procedure at the instance of the original complainant seeking special leave to appeal in order to challenge the judgment and order dated 03.04.2019 passed by the learned Additional Chief Judicial Magistrate, Idar in Criminal Case No.559 of 2019. By the said judgment and order, the learned Magistrate has recorded acquittal of the respondent no.2- original accused for the offence alleged under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the “Act”).

2. In nutshell the case of the complainant before the trial Court was that the complainant is an agriculturist holding agricultural land at village Laxmanpura, Tal: Idar, Dist. Sabarkantha and the son of the complainant is engaged in an independent business and is residing at Gandhinagar. The complainant, therefore, claims to have his own source of income. It is further contended that the complainant and the respondent - accused were having friendly relations and the respondent-accused had approached the complainant seeking hand loan, for which, the complainant had extended financial help of an amount of Rs.11,59,000/-.

2.1. It is the case of the complainant that the aforesaid amount was paid mainly through RTGS and has explained the details of such financial help by contending that an amount of Rs.2,20,000/- was paid on 20.01.2017 through cheque of Axis Bank, Rs.1,65,000/- on 10.04.2018 through cheque of Gramin Bank, Rs.3,15,000/- on 10.04.2017 through cheque of Gramin Bank and an amount of Rs.2,00,000/- was paid in cash on 20.05.2017, whereas, the amount of Rs.2,59,000/- was paid in cash to the accused on 30.05.2017. By referring to the aforesaid details, it is contended by the complainant that total amount of Rs.11,59,000/- on various occasions was given by hand loan to the respondent - accused.

2.2. The complainant has further submitted that out of the aforesaid amount the respondent accused had made part payment of an amount of Rs.2,50,000/-. It was submitted that an amount of Rs.50,000/- was repaid by cheque on 18.07.2018, whereas further amount of Rs.2,00,000/- was repaid by cheque on 19.07.2018. Thus, according to the complainant an amount of Rs.9,09,000/- was outstanding to be realized from the respondent – accused.

2.3. It is the case of the complainant that against the aforesaid remaining outstanding amount, the respondent-accused had issued cheque bearing no.003994 dated 1.12.2018 drawn from his account with Sabarkantha District Central Cooperative Bank, Goral Branch duly signed by the respondent-accused drawn in the name of the complainant. The said cheque was presented for realization by the complainant on 12.02.2019. However, the cheque was dishonoured on the ground of insufficient funds which was returned back by the Bank on 15.02.2019. In such circumstances, the complainant was constrained to initiate proceedings against the respondent- accused by raising the demand notice dated 19.02.2019 for the remaining outstanding amount of Rs.9,09,000/-. In the aforesaid notice, the specific details were addressed by the complainant with regard to the hand loan extended and part payment received, the complainant was called upon by the respondent- accused to make good the payment of the remaining outstanding amount within a period of 15 days, failing which, the complainant had cautioned to proceed with initiation of proceedings under Section 138 of the Act. The notice though duly served, respondent-accused had failed to respond to such legal notice and on expiry of statutory period the complainant had approached the Court of learned Additional Chief Judicial Magistrate, Idar by lodging the complaint under Section 138 of the Act on 05.04.2019. The said complaint was registered as Criminal Case No.559 of 2019 on 04.04.2019.

3. Considering the averments made in the complaint and the verification of the complainant, as recorded by the learned Magistrate on 03.04.2019 below Exh.1,