The complainant must prove the existence of a legally enforceable debt to invoke Section 138 of the Negotiable Instruments Act.

Paramjeet Singh, J.

The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 30.05.2014 passed by the Additional Chief Judicial Magistrate-cum-Presiding Officer, Evening Court, Pathankot whereby complaint filed by the applicant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') has been dismissed and respondent has been acquitted of the notice of accusation issued against him.

2. Brief facts of the case are that a complaint was filed by the applicant-complainant under Section 138 of the Act with the averments that in discharge of liability towards the complainant, respondent issued cheque bearing No. 514266 dated 02.04.2013 for Rs. 35,000/- in favour of the complainant, but the said cheque was dishonoured on presentation by the complainant in his bank. The same was returned to the complainant by his banker with memo dated 28.06.2003 with the remark "Account closed". He issued legal notice dated 05.07.2013 under Section 138 of the Act but to no effect, therefore, the complaint was filed.

3. On the basis of preliminary evidence, notice of accusation for commission of an offence punishable under Section 138 of the Act was served upon the accused-respondent to which he pleaded "not guilty" and claimed trial.

4. The complainant, in order to prove his case, examined himself as C.W. 1. Thereafter, statement of the respondent-accused under Section 313 Cr.P.C. was recorded wherein he pleaded complete innocence and false implication.

5. The trial Court, after appreciating the evidence, acquitted the respondent of the notice of accusation, served upon him, vide impugned judgment dated 30.05.2014. Hence, this application for grant of leave to appeal.

6. I have heard learned counsel for the applicant and gone through the impugned judgment.

7. The trial Court, after appreciating the evidence on record, observed as under:-

"11. Section 138 of the Act has three ingredients, viz:--

(i) That there is a legally enforceable debt;

(ii) That the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and

(iii) That the cheque so issue had been returned due to insufficiency of funds.

12. The proviso appended to the said Section provides for compliance of legal requirements before a complaint petition can be acted upon by a Court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt of other liability.

13. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstance of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence, the existence of negative evidence is neither possible nor contemplated.

14. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt di