The burden of proof under the Negotiable Instruments Act lies with the complainant to establish the nature of the liability and the exact amount advanced.

JUDGMENT

Tarlok Singh Chauhan, J —The respondent No.1 has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act (for short ''Act'') by learned Judicial Magistrate 1st Class, Court No.1, Solan, District Solan, H.P. passed in Criminal Case No. 1136-3 of 2011/09 on 19.6.2017 and aggrieved thereby the appellant/complainant has filed the instant appeal.

2. Brief facts giving rise to the present appeal are that the appellant has filed the complaint against the respondent on the allegation that the respondent in discharge of his liability and for consideration towards the appellant, issued cheque baring No. 100133 dated 13.5.2009 for Rs.10, 000/-, cheque No. 100134 dated 13.5.2009 for Rs.10, 500/- and cheque No.100132 dated 15.6.2009 for Rs. 33, 600/- drawn on Union Bank of India, Branch Solan of Account No. 362002010777222 with the assurance that the same would be honoured on its presentation in the bank under all circumstances. However, when the appellant presented these cheques for its encashment in Baghat Urban Cooperative Bank Ltd., Solan, Branch who in turn sent these to the Union Bank of India, Solan, but were dishonoured and returned to the appellant on 16.9.2009 due to the reason ''Funds insufficient''. Thereafter, a legal notice was sent by the appellant to respondent No.1 on dated 5.10.2012 through registered letter dated 18.9.2009 for arranging the cheque amount. However, despite the said notice, respondent No.1 did not comply with the terms and conditions thereof necessitating the filing of the complaint.

3. After recording the preliminary evidence, learned Magistrate took cognizance against respondent No.1 for commission of offence punishable under Section 138 of the Act and after securing the presence of respondent No.1, he was admitted on bail. On finding a prima facie case, notice of accusation for commission of offence punishable under Section 138 of the Act was put to respondent No.1 on 22.2.2017 to which he pleaded not guilty and claimed trial.

4. In support of his case, the appellant/complainant examined himself as his witness and thereafter the statement of respondent No.1 was recorded under Section 313 Cr.P.C. wherein he refuted the case of the appellant in its entirety.

5. The learned Magistrate after evaluating the material on record came to categoric findings that no case was made against respondent No.1 and accordingly acquitted him.

6. Aggrieved by the acquittal of respondent No.1, the appellant/ complainant has filed this appeal mainly on the ground that the learned trial Court had not appreciated the Section 118 (a) and Section 139 of the Act wherein presumption is drawn in favour of the holder of the Negotiable Instruments Act. It is further averred that in absence of there being any defence on the part of respondent No.1, he could not have been acquitted.

I have heard learned counsel for the parties and have gone through the records of the case carefully.

7. Before adverting to the relative merits of the case, it would be necessary to reproduce the relevant provisions of the Negotiable Instruments Act. Sections 118, 138 and 139 of the Negotiable Instruments Act, read thus:

"118. Presumptions as to negotiable instruments. -Until the contrary is proved, the following presumptions shall be made:-

(a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date -that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance -that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer -that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements -that the indorsements appearing upon a negotiabl