The complainant has moved this Court under Section 372 of the Code of Criminal Procedure against the judgment of acquittal dated 15th September, 2015 passed by learned Additional Judicial Commissioner IV, Ranchi in Cr. Appeal No.06 of 2015 whereby and whereunder the judgment of conviction and order of sentence dated th December, 2014 passed by learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No.2163 of 2012 (T.R. No.1001 of 2014) has been set aside and the accused opposite party no.2 has been acquitted of the charges.

2. The only question that arises for consideration in this appeal is whether the cheque issued by the respondent no.2 could be considered in discharge of legally enforceable debt or other liability and, if so, whether dishonour of such cheque amounts to an offence under Section 138 of Negotiable Instrument Act, 1881 (in short 'the Act').

3. Bereft of unnecessary fact, the facts which is relevant for the purpose of proper adjudication of the issue involved in this appeal, in short, is that at the instance of the present appellant, a complaint was filed with the allegation that the respondent no.2Ajay Kumar Upadhyay had taken a friendly loan of Rs.6,40,000/- on 09.07.2012 from the complainant and promised to make repayment of the said amount by 09.08.2012 but as the respondent no.2 did not make any payment within the said stipulated period, on one pretext or other but subsequently on his request the respondent no.2 issued a cheque bearing no.156541 dated 09.10.2012 in favour of the complainant. However, on presentation of the cheque in the bank concerned for its encashment, the same was dishonoured showing 'insufficient fund'. After getting the return memo showing ‘insufficient fund’ dated 12.10.2012, a legal notice was sent to the respondent on 20.10.2012 but respondent no.2 failed to make any payment whereafter the complaint case was instituted.

4. The trial court upon consideration of the evidence and pleadings of the parties convicted the accused-respondent no.2 under Section 138 of the Act and sentenced to undergo simple imprisonment for four months and to pay Rs.7,00,000/by way of compensation to the complainant within two months. Aggrieved by the said judgment of conviction and sentence, the accused-respondent no.2 preferred an appeal and the Lower Appellate Court after considering the evidence on record and submissions of the counsels, acquitted the accused of the charges by the impugned judgment whereafter this appeal has been preferred.

5. Mr. Jaiswal, learned counsel appearing for the appellant assailing the order of the First Appellate Court as bad in law and perverse seriously contended that the Appellate Court without applying its judicial mind and without appreciating the evidence on record in right perspective, passed the order impugned relying upon highly improbable story which is not sustainable in law. It was also submitted that the Lower Appellate Court merely relying upon the fact of non-examination of the son of the complainant in fanciful manner held that non-production of any chit of paper regarding alleged transfer of Rs.6,00,000/coupled with non-examination of the son has created doubt over the entire complaint case.

6. Refuting the above submissions, the learned counsel representing the respondent no.2 seriously contended that the complainant has failed to prove by any cogent evidence that the said cheque was issued by the accused respondent no.2 in discharge of any enforceable debt or other liability and Section 138 of the Act treats dishonoured cheque as an offence only if the cheque has been issued in discharge of any debt or other liability. Supporting the impugned judgment of acquittal, learned counsel further submitted that there is no infirmity, illegality or perversity in the order passed by the said court so to interfere in the judgment of acquittal.

7. Before I enter into the veils of submissions of the counsels, it is necessary to examine as to whether the i