Mr. Hari Pal Verma, J.: (Oral) - This is an application filed under Section 378(4) CrPC seeking permission to grant special leave to appeal against the order dated 15.1.2014 passed by Judicial Magistrate Ist Class, Hisar, whereby the accused-respondents have been acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”).

2. The complainant-firm through its authorized person had filed the present complaint under Section 138/147 of the Act for initiating criminal action against the respondents-accused on the premises that respondent no.1-firm is having its business terms with the complainant whereas respondent no.2 is a proprietor of respondent no.1-firm. Respondent no.1 had purchased seeds from the complainant on credit basis and in discharge of its liability, respondent no.2, being the proprietor of respondent no.1-firm, issued a cheque bearing No.339341 dated 30.4.2009 for a sum of Rs.1,14,830/- drawn on Jind Central Cooperative Bank Limited, Branch Office Kharkhoda, Jind in favour of the applicant-complainant. However, the said cheque was dishonoured with the remarks “balance funds” vide bank return memo. dated 12.8.2009.

3. On the basis of preliminary evidence, as led by the complainant, the respondent no.2-accused was summoned for commission of an offence under Section 138 of the Act. While putting in appearance, the respondent-accused pleaded not guilty and claimed trial.

4. The complainant examined Rajesh Kumar as PW-1 and he tendered his affidavit Ex.PW-1/A and other documents Ex.P1 To Ex.P8 in support of his evidence, the details of which is as under:-

“Ex.P1 resolution

Ex.P2 & P3 invoices/bills

Ex.P4 original cheque

Ex.P5 bank memo

Ex.P6 legal Notice

Ex.P7 & P8 postal receipts”.

5. In his statement under Section 313 CrPC, the respondent-accused denied the contents of the complaint being false and submitted that the witnesses have deposed falsely against him.

6. Considering the rival contentions of the parties, learned trial Court dismissed the complaint with the following observations:-

“18. Though the invoices/bills have been produced by the complainant as Ex.P.2 and Ex.P.3 but it is the case of the complainant that the seeds were purchased by the accused on credit basis. If the seeds were purchased by the accused on credit basis, the complainant must have maintained some account qua this. But in the present case, the complainant has not produced any account statement allegedly of the accused. When the account statement has not been produced, a doubt has been created on the case of the complainant. The necessity to produce the account statement has been stressed upon by the Hon’ble Punjab & Haryana High Court in the judgment cited as M/s Goodwill Hire Purchase Corporation Vs. Daljit Singh @ Jangi, [2010(3) Law Herald (P&H) 2496] : 2012 (2) LJR 374.

19. In the present case, the business activities with the complainant have been admitted by the accused. The complainant has failed to produce the account statement. The address mentioned on the bills produced by the complainant does not match with the address mentioned in the head note of the complaint. So, the bills are also not reliable and hence, it cannot be ruled out that the cheque in question was only a security cheque which has been misused, which is otherwise the stand of the accused.

20. For the reasons mentioned above, I am of the considered opinion that the complainant has failed to prove that there was legally enforceable liability outstanding against the accused. The evidence led by the complainant is defective in nature which cannot be relied upon. Hence, it is held that the presumption under section 139 of the Act has been rebutted from the material available on the file and the ingredients of the section 138 of the Act are not made out. Consequently, the present complaint is hereby dismissed. The accused are hereby acquitted of the offence under section 138 of the Act. Bail