The validity of a cheque dishonor complaint under Section 138 depends on demonstrating a legally enforceable debt, which the complainant failed to establish.

JUDGMENT :

L. S. PIRZADA, J.

1. The present revision application preferred by the applicant – original complainant under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment dated 15.12.2007 passed by the learned Additional Sessions Judge, 4^th Fast Tract Court, Modasa at Sabarkantha in Criminal Appeal No.12 of 2006, allowing the appeal of the present respondent no.1 – original accused, quashing and setting aside the judgment and order of conviction dated 18.03.2006 passed by the learned Judicial Magistrate First Class, Modasa, Camp at Bayad in Criminal Case No.725 of 2001, convicting the respondent no.1 - original accused under Section 138 of the Negotiable Instruments Act, 1881 (for short, the “Act”) and sentencing him to undergo 1 year’s rigorous imprisonment and to pay fine of Rs.5000/-, in default, to undergo further two months’ simple imprisonment.

2. The factual matrix of the present case are that the present applicant – original complainant has filed one complaint for the offence punishable under Section 138 of the Act against the present respondent no.1 – original accused before the learned Judicial Magistrate First Class, Bayad being Criminal Complaint No.725 of 2001 on 17.09.2001. It is the case of the original complainant before the learned trial Court that the original accused is doing a business at Kapadvanj in the name and style of “Bombay Novelty Store” and the complainant frequently visiting the shop of the accused for purchasing. Thereafter, their relation became friendly and subsequently, for the purpose of development of the business, the original accused on 20.04.2001, has demanded hand-loan of Rs.1 lac from the complainant and the complainant has told the accused that he will give the said amount on 26.04.2001 and the accused also assured the complainant that he will return the said amount within three months.

2.1. On 26.04.2001, the accused came to the village: Kavath of the original complainant at Taluka: Kapadvanj and the complainant has given the amount of Rs.1 lac to the accused and against that, the accused has given a cheque of Rs.1 lac drawn on Punjab National Bank, Kapadvanj Branch from his C.C. Account No.422 dated 26.07.2001 and also assured the complainant that upon presenting the cheque in the account, the same would be cleared and the complainant will get the amount of Rs.1 lac.

2.2. Subsequently, as per the instructions of the accused, the said cheque was deposited by the complainant on 26.07.2001 in the Savings Account at Sabarkantha Jilla Madhyasth Sahkari Bank Limited, Demai Branch and the said cheque was not cleared and returned with an endorsement “Exceeds Arrangement” and the same was intimated to the complainant on 07.08.2001. Subsequently, the complainant has issued a notice through his advocate to the accused on 17.08.2001, which was sent through R.P.A.D. and U.P.C., which was duly served to the accused but, the accused has not paid the amount within 15 days and also not paid any heed to the notice and given a false and frivolous reply. Thereafter, the complaint came to be filed by the complainant under Section 138 of the Act on 17.09.2001 against the respondent no.1 - accused.

2.3. After filing of the complaint, the Court has issued process under Section 204 of the Code of Criminal Procedure and the same was duly served. The plea of the accused was recorded and the accused pleaded not guilty and stated to be tried and thereafter, the complainant has given his examination-in-chief vide exh.41 and also produced the evidence including original cheque and other documentary evidence. Thereafter,