The main legal point established in the judgment is that the prosecution must prove the existence of a legal and enforceable debt or liability of the accused towards the complainant to establish an offense under section 138 of the NI Act.

1. Heard Mr. A Chamuah, learned counsel for the appellant. None appears on behalf of the respondent No. 1 (private respondent) despite service of notice and the learned State-respondent is a formal party.

2. The appellant as a complainant lodged the complaint u/s 138 of NI Act before the learned Trial Court of learned Judicial Magistrate 1st Class, Kamrup (M) for dishonour of cheque that was issued by the respondent No. 1 Sajid Ali. The case was came for trial before the Court of learned JMFC, Kmarup (M) vide CR Case No. 146c/ 2015. So far as the case of the complainant is that the complainant had a good business dealings with the accused. It is alleged that the accused/respondent in relation to the business dealings, issued a cheque No. 396544 dated 17.10.2014 for an amount of Rs. 90,000/- against his liability. The complainant accordingly submitted the said cheque before the bank concerned but on two occasions, the same was returned dishonoured for insufficient of fund. Accordingly, the complainant served a legal notice upon the accused/respondent demanding the payment of the cheque amount but there was no response to such notice and hence he filed the complaint case as above.

3. The accused/respondent stood the trial and denied the charge u/s 138 of NI Act that was explained to him.

4. In course of trial, the complainant as well as the accused examined himself as witnesses in support of their claim. It appears from his statement u/s 313 Cr.P.C., that accused admitted about taking of loan of Rs. 80,000/- and according to him he also returned an amount of Rs. 60,000/- as against such loan.

5. The learned Trial Court framed the following points for determination:

(a) Whether the accused issued cheque No. 396544 dated 07.10.2014 (Ext-1) in favour of the complainant for the discharge of his legally enforceable debt or liability?

(b) Whether Ext-1 was dishonoured due to insufficiency of funds?

(c) Whether the accused received the demand notice issued by the complainant regarding the dishonour of the cheque?

(d) Whether the accused failed to repay the cheque amount to the complainant within the stipulated period?

(e) Whether the accused has committed the offence u/s 138 of the Act?

6. After appreciation of the evidence and the document on record, the learned Trial Court has discussed and decided all the points in favour of the petitioner but the last point for determination was decided in negative by holding that prosecution has failed to prove that the accused that cheque was issued in discharge of legal liability. In holding, so the learned Trial Court has relied upon the evidence of the accused/respondent wherein stated that he has taken loan of Rs. 80,000/- as against which he has already paid Rs. 60,000/-. In view of the evidence of the defence, the Court found and held that the prosecution has failed to prove the existence of legal and enforceable debt of liability of the accused towards the complainant and hence failed to prove the offence u/s 138 of NI Act and acquitted the accused person.

7. Challenging the aforesaid finding and order, the present appeal has been preferred after obtaining the necessary leave.

8. I have heard the argument of learned counsel for the appellant whereas none appears for & on behalf of respondent No. 1/accused despite service of notice. I have considered the evidence on record and let us appreciate the evidence of both the parties.

9. The complainant/appellant as PW-1 in his evidence has stated all about the facts that the accused took loan of Rs. 90,000/- as against the same and he also issued the cheque vide Ext-1 towards the liability and on being deposited the cheque was dishonoured for which he issued legal notice demanding payment of the cheque amount. As against the said evidence and the complainant, the accused/respondent examined himself as DW-1 in his evidence, he has admitted that he took the loan of Rs. 80,000/- from the complainant and at the time of taking loan he signed the blank ch