JUDGMENT

Jasjit Singh Bedi, J. - The applicant/appellant has filed the present application for leave to appeal against the order of acquittal dated 18.12.2019 passed by Judicial Magistrate, Ist Class, Bhiwani, whereby the complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by the applicant/appellant was dismissed.

2. The brief facts of the case are that in the month of April, 2016, the complainant advanced a friendly loan of Rs.3,00,000/- to the accused for his personal requirements. The accused person promised to return the amount within 2/3 months.

3. In order to discharge his liability, accused issued a cheque bearing No.390196 dated 16.07.2016 amounting to Rs.3,00,000/- in the name of Punjab National Bank, Halu Bazar, Bhiwani. The cheque when presented to the Bank of Baroda was returned unpaid with memo dated 18.07.2016 by the office of Punjab National Bank, with the remarks that "Insufficient Funds".

4. The complainant led preliminary evidence and closed the same on 30.08.2016 who tendered his affidavit Ex.CW1/A reiterating the averments of the complaint and proved the following documents in his documentary evidence:-

S. No. Exhibits Documents 1 Ex.C1 Original cheque bearing No.390196 dated 16.07.2016 2 Ex.C2 Deposit Slip 3 Ex.C3 Memorandum dated 18.07.2016 4 Ex C4 Return memo dated 18.07.2016 5 Ex C5 Legal notice dated 03.08.2016 6 Ex C6 Postal receipt dated 04.08.2016 7 Ex C7 Acknowledgment

5. On the basis of the preliminary evidence, the learned Trial Court after finding sufficient grounds vide order dated 30.08.2016, summoned the accused to face trial for the commission of offence punishable under Section 138 of Negotiable Instruments Act.

6. Thereafter, complaint Sh. Parmod Kumar was present and examined as CW1. He proved on record his affidavit Ex.CW1/A. Vide separate recorded statement complainant closed his evidence on 13.12.2018.

7. Statement of accused under Sections 313 Cr.P.C. recorded.

8. In defence evidence, Sh.Anil Kumar, Criminal Ahlmad was present and examined as DW1. He proved on record Ex.D5 to Ex.D14.

Sh. Yashpal Chand Jain, Handwriting Expert was present and examined as DW2. He proved on record his affidavit Ex.DW2/A, report Ex.DW2/B and photographs Ex.DW2/C.

9. Thereafter, vide a separate recorded statement the accused closed his defence evidence after tendering documents Ex.D1 to Ex.D4, Ex.D15 and Ex.D16. Thereafter, the defence evidence was closed by Court order.

10. It was argued by the learned counsel for the accused that in fact the cheque in question had been misused by the accused in order to evade his liability for a payment of Rs.12 lakhs, which the complainant had borrowed from the relative of the accused-respondent. It was contended that the act and conduct of the complainant was apparent from his denial qua the business transaction of goods between the complainant and the accused, wherein, the accused had deposited money for purchase of material through RTGS in the account of the complainant. In fact a blank signed cheque available with the complainant had been misused by the complainant without the existence of any legally enforceable debt and that the handwriting expert DW-2 had opined that the body of the cheque in question had been filled up by the complainant himself. The cheque in question seemed to be a security cheque without any evidence of the debt being alive on the date when the cheque was presented.

11. After hearing the counsel for the parties and examining the record, the Court came to the conclusion that the complainant himself had admitted the execution of a document Ex.D-2 vide which he had borrowed a sum of Rs.12 lakhs on 22.12.2013 from the relative of the accused to be repaid within 36 months i.e. uptil 22.12.2016 and therefore, it could be safely inferred that the complainant lacked the financial capacity to advance the loan of Rs.3 lakhs to the accused, when he himself was borrowing money from the relative of the accused.

12. Keeping in view the afore