An acquittal can only be overturned if compelling reasons exist; the burden of proof lies with the complainant to establish the offence under Section 138 of the NI Act.

Judgment :

1. Instant criminal leave to appeal has been filed by the appellant-complainant under Section 378(4) Cr.P.C . against the acquittal of the accused-respondent No.1 from offence under Section 138 of NI Act vide judgment dated 10.02.2022 passed by learned Additional Civil Judge & Metropolitan Magistrate No.8, Jodhpur Metro in Cr. Original Case No.188/2010.

2. Brief facts of the case are that a complaint under Section 138 of NI Act was submitted by the complainant against the accused-respondent inter alia alleging that the accused- respondent took loan of Rs.2,25,000/- with interest of Rs.66,012/- on it, total Rs.2,91,012/-, for purchase of Mahindra Tractor through a valid agreement. On paying some installments, an amount of Rs.1,11,664/- was due against the accused-respondent and for payment of the said amount, the accused-respondent issued four cheques to the complainant including cheque No.281906 of SBBJ Bank of Rs.24,251/- dated 04.01.2008. On presentation, the aforesaid cheque was returned with an endorsement of “account closed”. Thereafter, the appellant sent a legal notice to the accused-respondent, which was duly served upon him. Despite service of legal notice, the accused-respondent did not pay the amount. Hence, the appellant filed complaint under Section 138 of NI Act before the trial court.

3. On the complaint, the trial court took cognizance against the accused-respondent under Section 138 of NI Act and thereafter framed charge against him.

4. In support of the complaint, the power of attorney holder of the appellant-company examined himself as PW-1 and exhibited various documents. Thereafter, statement of accused respondent was recorded under section 313 Cr.P.C .

5. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 10.02.2022 acquitted the accused- respondent from offence under Section 138 of NI Act. Hence, this criminal leave to appeal.

6. Learned counsel for the appellant-complainant submits that the learned trial court has committed grave error in acquitting the accused-respondent for offence under Section 138 of NI Act. While passing the impugned judgment, the learned trial court did not consider the fact that the signature on the cheque was not denied by the accused-respondent and therefore, offence under 138 of NI Act is made out against the accused-respondent. The appellant by producing oral and documentary evidence has proved the burden that the cheque in question was given to it by the accused- respondent against the legal liability of borrowed money. But the learned trial court without appreciating the evidence in proper manner, acquitted the accused-respondent. Thus, the impugned judgment being per se illegal deserves to be quashed and set aside and the accused-respondent ought to have been convicted and sentenced for offence under Section 138 of NI Act.

7. Learned counsel for accused-respondent has vehemently opposed the prayer made by the counsel for the petitioner and submitted that the learned trial court has considered each and every aspect of the matter and has rightly acquitted the accused- respondent. The order of acquittal is just and proper and therefore, no interference is required.

8. Heard learned counsel for the parties and perused the evidence of the prosecution as well as defence and the judgment passed by the trial.

9. On perusal of the impugned judgment, it appears that the appellant/complainant did not produce the loan agreement by which the accused-respondent took loan from the appellant Company for purchase of a Mahindra Tractor. The appellant Company prima facie also failed to prove that how much loan was sanctioned in favour of the accused-respondent on what rate of interest. The appellant has also failed to show that on what terms and conditions, the loan agreement was executed between the appellant-company and the accused-respondent. There are material contradictions, omissions and improvements in the statements of the witnesses to prove the fact