The complainant must prove the existence of the transaction and the liability under section 138 of the Negotiable Instrument Act in cases of cheque dishonour.

JUDGMENT :

Justice Rajiv Sharma, J.

This appeal is instituted against the judgment dated 28.11.2005 rendered by the Judicial Magistrate 1st Class, Theog, District Shimla in case No. 224-1 of 2003.

2. ?Key facts? necessary for the adjudication of this appeal are that appellant filed a complaint under section 138 of the Negotiable Instrument Act with the allegations that he was running a clinic at Baghi. Respondent was under liability to pay a sum of Rs. 1,30,000/- to him as an advance taken by him for purchasing the medicine etc. The respondent, as such, in order to discharge the liability issued a cheque dated 1.6.2003 for a sum of Rs. 1,30,000/- drawn at Central Bank of India Branch at Bangana, District Una. The complainant submitted the cheque to his banker, namely, UCO Bank branch at Baghi, Tehsil Kotkhai for its collection from the banker of the accused, but the complainant on 28.8.2003 received a letter alongwith memorandum from UCO Bank Baghi showing that the cheque has been dishonoured. Complainant issued a legal notice on 11.9.2003 to the accused and demanded the amount of cheque within 15 days from the date of receipt of notice. However, despite receiving the notice accused has not paid the amount of cheque, as such, a complaint was filed by the complainant.

3. Process was issued to the respondent. Notice of accusation was framed against the respondent. Learned Judicial Magistrate 1st Class, Theog dismissed the complaint on 28.11.2005. Hence, the present appeal.

4. Complainant, in addition to his own statement, examined two more witnesses. Statement of respondent was also recorded under Section 313 of Cr. P.C.

5. The cheque is Ext. PA. In the cheque the words Doctor Lok Nath Sharma at the top and signature at the bottom are in one ink whereas the amount in figure and words alongwith date as 1.6.2003 are in different ink. The handwriting is also different. This fact was admitted by the complainant while appearing as CW-1. It casts doubt about the issuance of cheque by the respondent. According to the complainant, he was running a clinic and the respondent has taken an advance of Rs. 1,30,000/- from him. Respondent issued cheque in the discharge of his liability. The transaction allegedly took place in the year 1995-96. Cheque is dated 1.6.2003. The complainant has miserably failed to prove that there was any such transaction which has taken place between him and the respondent. The complainant has also failed to prove that respondent has taken advance money from him. There is no receipt to this effect. He has not produced any record to show that there was any such transaction leading to payment of advance money. Initially, case of the complainant was that he has paid the entire amount to the respondent at Hamirpur. However, later on he has stated that the amount was paid in two installments of Rs. 80,000/- and Rs. 50,000/- respectively. The complainant has failed to prove that cheque Ext. PA was actually issued by the respondent in respect of any debt or legally enforceable liability. The Court below has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment rendered by the Judicial Magistrate 1st Class, Theog.

6. Accordingly, in view of the analysis and discussion made herein above, there is no merit in the appeal and the same is dismissed.