The main legal point established in the judgment is the requirement for the complainant to prove that the cheque was given in discharge of debt or liability and to provide evidence of the reasons for dishonour of the cheque by the concerned banker.

JUDGMENT

P.K. Lohra, J - Heard learned counsel for the appellant and perused impugned judgment dated 5th of December, 2017 passed by Addl. Sessions Judge No.4, Jodhpur Metropolitan (for short, 'learned appellate Court'), whereby learned appellate Court has reversed judgment dated 10th of April, 2017, passed by Special Metropolitan Magistrate, (N.I. Act Cases) No.3, Jodhpur Metropolitan (for short, 'learned trial Court'), convicting accused-respondent No.2 for offence under section 138 of the Negotiable Instruments Act (for short, 'N.I. Act') and also perused the entire record of the case.

2. At the threshold, on a complaint of present appellant, learned trial Court convicted accused-respondent for aforesaid offence and handed down sentence of one year simple imprisonment with fine of Rs. 1,60,000/- and, in default of payment of fine to undergo sentence for one month's simple imprisonment. Learned trial Court has further ordered that on expiry of period of limitation, the amount of fine shall be paid to the appellant-complainant as compensation.

3. Feeling aggrieved with the judgment of learned trial Court, accused-respondent preferred an appeal before learned appellate Court and the learned appellate Court, after examining the matter afresh, including disputed cheque (Ex.1) and memo (Ex.2) issued by the bank, has found that in the memo (Ex.2) no reasons are spelt out for dishonouring of the cheque by drawee bank. Learned trial Court has also found that the memo as such appears to be not an authentic document inasmuch as it has not been signed by any bank official.

4. In order prove his case , the appellant-complainant himself has appeared in the witness-box and stated oath. that the cheque in question given to him by the accused-respondent in discharge of his debt or liability, and when the is presented before the bank it has dishonouring. Be that as it may the reasons which the appellant-complainant has projected in his statement are not borne out from the memo(Ex.2).

5. True it is that for constituting offence under section 138 of the N.I. Act, it is necessary for the complainant to prove that cheque in question was given to him by the accused in discharge of his debt or liability and the same is dishonoured due to insufficiency of funds or some other reasons but then mere discharge of that burden cannot fasten criminal liability on the accused-person. It is also obligatory on the complainant to prove the reason for dishonour of cheque by the concerned banker.

6. Upon perusal of the memo (Ex.2), in my opinion, prima facie, the same is not inspiring confidence. Moreover, the recitals contained in the memo are conspicuously silent about reason for dishonouring the cheque. The endeavour made by the appellant is to question the verdict of acquittal, may it by the appellate Court, and therefore, in my opinion, it would not be appropriate for this Court to interfere with the finding of acquittal recorded by learned appellate Court until and unless it finds that the judgment of acquittal has resulted in miscarriage of justice.

7. In view thereof, leave craved for by the appellant is declined and the Criminal Leave to Appeal is, hereby, rejected.