The burden of proof under Section 139 of the N.I. Act must be discharged by the accused to defend against allegations of dishonour of cheque.

JUDGMENT

Sandeep Mehta, J. - The instant application for grant of leave to appeal has been preferred by the applicant-complainant Bhagwan Das seeking to assail the judgment dated 21.08.2018 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No.5 Jodhpur Metro in Criminal Original Case No.32/16 (NCV No.6121/2017) whereby the learned trial court acquitted the respondent Tek Singh from the charge under Section 138 of the N.I. Act.

2. I have heard and considered the submissions advanced by learned counsel Shri Hemant Bhati, Associate to Shri Sanjay Nahar, Advocate representing the applicant-complainant and learned counsel Shri D.S. Gharsana representing the respondent (acquitted accused) and have gone through the impugned judgment as well as the record.

3. The complainant filed the complaint under Section 138 of the N.I. Act with the allegation that he and the accused were on good terms and thus, he gave a loan of Rs.5,00,000/- to the accused owing to friendly terms between them so that he could meet his personal needs. The accused gave the post dated cheque No.024417 dated 20.02.2016 drawn on Punjab National Bank, Mahatma Gandhi Hospital Road, Jodhpur for a sum of Rs.5,00,000/- to the complainant so as to reimburse the loan amount. The cheque was presented for encashment but it was dishonoured owing to insufficiency of funds. The complainant gave a notice to the accused respondent under Section 138 of the N.I. Act. The accused replied to the said notice with totally false assertions. The complainant gave a rejoinder notice to the accused and then the complaint came to be filed before the learned trial court as the accused had failed to discharge the legally enforceable debt.

4. Shri Hemant Bhati, Advocate urges that the complainant proved the existence of the legally enforceable debt against the accused by leading cogent evidence. The cheque was dishonoured because of insufficiency of funds. The accused did not give proper response to the notice under Section 138 of the N.I. Act. He thus, urges that the trial court was absolutely unjustified in acquitting the accused by the impugned judgment and it is a fit case warranting grant of leave to appeal to the complainant.

5. Per contra, learned counsel Shri D.S. Gharsana representing the acquitted accused pointed out that a specific defence of misuse of the cheque was taken by the accused before the trial court. In reply to the notice under Section 138 of the N.I. Act (Ex.P/5) given by the accused, he took a specific plea that the allegation made by the complainant in his legal notice that he had given a loan of Rs.5,00,000/ to the accused as they were on friendly terms was false and; that a smaller loan was given by the complainant to Smt. Rajwant Kaur, wife of Tek Singh which was timely returned. The cheque in question was handed over by way of security against the said loan and had been misused. Learned counsel Shri Gharsana representing the accused drew the Court's attention to the cross-examination of the complainant (PW.1) where he admitted that the contents of the reply (Ex.P/5) were correct and that contents of the rejoinder (Ex.P/6) (sent on behalf of the complainant) were false. He urges that as the complainant himself admitted in his cross-examination that the plea putforth in the reply to the notice was correct, the burden cast upon the accused by virtue of Section 139 of the N.I. Act stood fully discharged. Hence, as per Shri Gharsana, there is no ground to interfere in the impugned judgment of acquittal.

6. I have given my thoughtful consideration to the submissions advanced at bar by learned counsel for the parties and have minutely re-appreciated the evidence available on record.

7. The fact that the complainant admitted in his crossexamination that the contents of the reply to the notice under Section 138 of the N.I. Act given by the accused (Ex.P/5) were correct is by itself sufficient to convince the Court that the whole set of allegations, laid by the comp