The burden of proof lies on the complainant to establish the existence of a legally enforceable debt and the issuance of the cheque in discharge thereof under Section 138 of the Negotiable Instruments Act, 1881.

Headnote:
Negotiable Instruments Act - Cheque Bounce - 138 - The court discussed the provisions of Section 138 of the Negotiable Instruments Act, 1881 and the burden of proof on the complainant to establish the existence of a legally enforceable debt and the issuance of the cheque in discharge thereof.
Fact of the Case:

The appellant-complainant alleged that the respondent-accused borrowed a sum of Rs. 6,00,000/- and issued a cheque which was returned unpaid. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Finding of the Court:

The Sub Divisional Judicial Magistrate, Siwani acquitted the accused, stating that the complainant failed to establish the advancement of the loan and the issuance of the cheque in discharge of the legally enforceable debt. The court emphasized the burden of proof on the complainant and the rebuttable nature of the presumption in favor of the holder of the cheque.
Issues: The issues revolved around the establishment of the loan advancement, issuance of the cheque, and the burden of proof under Section 138 of the Negotiable Instruments Act, 1881.
Ratio Decidendi: The court held that the burden falls upon the complainant to establish the existence of a legally enforceable debt and the issuance of the cheque in discharge thereof. The court emphasized the rebuttable nature of the presumption in favor of the holder of the cheque and the absence of a negative burden on the accused to prove innocence.
Final Decision: The appeal was dismissed, affirming the judgment of the Sub Divisional Judicial Magistrate, Siwani.

JUDGMENT

Vinod S. Bhardwaj, J. (Oral) - The present appeal has been filed against the judgement dated 21.02.2019 passed by Sub Divisional Judicial Magistrate, Siwani in Criminal Case No.200-II of 2017 titled as 'Pamod Kumar Vs Smt. Geeta Devi' whereby the respondent-accused has been acquitted of the charges levelled against her.

2. The brief facts of the case are that the appellant-complainant and respondent-accused are stated to have shared cordial and friendly relations and therefore, the respondent-accused borrowed a sum of Rs. 6,00,000/- from the appellant-complainant and respondent-accused, in discharge of her legal liability, issued a cheque No. 556532 dated 12.07.2017 for an amount of Rs. 6,00,000/- in favour of the appellant-complainant from her bank account No. 30210204809 drawn on SBI, Hisar. The cheque was presented to drawee bank but same was returned unpaid with remarks 'Account Closed' vide memo dated 14.07.2017. Thereafter, a notice was served upon the respondent-accused on 01.08.2017 but the respondent-accused had not paid the amount of the cheque. The complaint under Section 138 of the Negotiable Instruments Act, 1881 was thus instituted.

3. After preliminary evidence of the complainant, the respondent- accused was summoned to face trial vide order dated 14.08.2017. Respondent accused appeared before the court and applied for bail. He was admitted to bail vide order dated 07.02.2018 and he was served with a notice of accusation under Section 138 of the Negotiable Instrument Act, 1881 vide order dated 12.03.2018 to which, he pleaded not guilty and claimed trial.

After the notice of accusation, the complainant examined himself as CW-1 and Smt. Sharda as CW-2. The appellant-complainant has also tendered original cheque bearing No. 556532 dated 12.07.2017 as Ex.P1, return memo dated 14.07.2017 as Ex.P2, copy of legal notice dated 01.08.2017 as Ex.P3, postal receipt as Ex.P4, copy of Bank account statement of complainant as Ex.PX.5. Thereafter, the evidence of appellant-complainant was closed by complainant vide his separate statement dated 06.08.2018.

Statement of respondent-accused under section 313 of the Code of Criminal Procedure was recorded wherein he stated that he has been falsely implicated in the present matter.

In defence evidence, the respondent-accused examined Vinod Kumar Senior Associate, SBI, Azad Nagar as DW-1 and tendered the following document:-

Ex. D1/A:- Copy of Bank Account statement of accused

Ex. D1/B:- Copy of relevant extract of register in which application for stop payment has been entered.

Ex. D1/C:- Copy of application for stopping payment.

Ex. D2:- Copy of application dated 20.05.2017 moved to SHO, Police Station, Balsamand

Ex. D3:- Affidavit furnished by Bir Singh son of Nihal Singh

Ex. D4:- Affidavit furnished by Bir Singh son of Ran Singh

Ex. D5:- Affidavit furnished by Mangat Ram son of Fateh Singh

Ex. D6:- Affidavit furnished by Raju son of Om Parkash

Thereafter, learned defence counsel closed the evidence, vide his separate statement dated 20.02.2019.

4. Upon consideration of the entire evidence, the Sub Divisional Judicial Magistrate, Siwani came to the following conclusion:-

12. In the present complaint, according to the complainant, he had advanced a loan of Rs. 6,00,000/- to the accused on friendly terms as she was in need of money. However, the complainant has failed to mention the time and date of the advancement of alleged loan to the accused. It is also strange that the complainant had advanced the loan of such a huge amount of Rs. 6,00,000/- to the accused without any written agreement or in the absence of any independent witness. He has also failed to disclose the purpose for which the accused had allegedly taken the loan from end. According to the case of the complainant, he had withdrawn a sum of Rs. 4,00,000/- and 5,00,000/- from his bank account on 20.11.2014 & 25.11.2014 respectively and had paid an amount of Rs. 6,00,000/- out of the cash above mentioned to the accused. However,

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