JUDGMENT AND ORDER :

Vijay Bishnoi, J.

This leave to appeal is filed on behalf of the appellant seeking leave to file appeal against the judgment dated 18.07.2011 passed by the Judicial Magistrate, Pali (hereinafter to be referred as 'the trial court') in criminal case No.87/2007 whereby the trial court has acquitted the accused respondent for the offence punishable under Section 138 of the Negotiable Instrument Act while holding that since the complainant in discharging of his burden has failed to proved the guilt of the accused for the said offence, the accused is liable to be acquitted.

2. After scrutinizing the evidence available on record, the trial court has observed as under :

"Thus by leading such oral and documentary evidence, the accused has discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful, thereby rebutting the statutory presumptions. In such circumstances, the onus now shifts on the complainant who has to proved that the accused defence is false and that the hand loan of 21000/- was actually given to the accused to meet his necessity and that the accused gave the cheque for the discharge of such debt. But the complainant has not adduced any substantial evidence to support such version. Even during the cross examination of the accused, there is no suggestion regarding the incident of giving the aforesaid hand loan, nor did the complainant state the date on which he gave money to the accused and in whose presence. Also it is slightly unbelievable that a person takes a hand loan of Rs.21000 which could be in round figure i.e. 20,000 or 25000 in the ordinary course of human conduct.........................................

After going through all the oral and documentary evidences, I find the defence of the accused that the cheque was given as a security, equally probable and in absence of sufficient evidence on behalf of prosecution, I am inclined to draw conclusions that the disputed cheque might be given by accused in discharge of some legal debt or liability as well as that it might be furnished as a security."

3. After carefully perusing the impugned judgment this Court is of the opinion that when the complainant has failed to produce any reliable evidence to prove the guilt of the accused for the offence punishable under Section 138 of the Negotiable Instrument Act and the trial court has not committed any illegality in acquitting the accused-respondent for the said charges. Hence, no case for grant of leave to appeal to this court is made out.

4. Consequently, the leave to appeal fails and the same is dismissed.

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