The judgment emphasizes the importance of proving the elements of an offence under Section 138 of the Negotiable Instruments Act and highlights the limited scope for interference in an appeal against acquittal.

AVNEESH JHINGAN, J.

1. This application filed by the Mansa Central Cooperative Bank Ltd. (for short, 'the Bank') for grant of leave to appeal against the judgment of acquittal is accompanied by an application for condoning the delay of 23 days in filing thereof.

2. The dispute in the present case is relating to dishonouring of cheque of Rs.1,69,000/- for clearing the balance loan of Rs.60,000/-.

3. The brief facts are that the accused (respondent herein) availed housing loan of Rs.2,00,000/- on 24.11.2012. The loan was to be repaid in monthly installments. A cheque bearing NO. 355201 dated 12.9.2016 amounting to Rs.1,69,000/- was given by the respondent for clearing the loan . On presentation, the cheque was dishonoured vide memo dated 12.9.2016 with remarks “insufficient funds”. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') was filed. Happy, the authorised representative of the Bank tendered his affidavit to support the complaint.

4. The accused in statement under Section 313 Cr.P.C. stated that the bank had obtained thumb impression on the blank cheque. The cheque book was with the bank. No notice was served upon him.

5. It was concluded that the complainant failed to prove its case. The authorised representative appearing on behalf of the Bank in cross-examination stated that he had neither served the notice nor given the loan to the accused. Further, the original file was not produced. He admitted the fact that out of Rs.2,00,000/-, Rs.1,40,000/- were repaid by the accused.

6. Learned counsel for the applicant submits that the trial court erred in acquitting the accused. The presumption under Section 139 of the Act was not considered. It is further argued that it was not disputed that the cheque had thumb impression of the accused.

7. The operational part of the impugned judgment is reproduced below:

“7. I have heard the learned counsel for the complainant bank as well as ld. Defence counsel and have gone through the file very carefully. After hearing learned counsel for the parties and going through the statements of witnesses and documents on record, I am of the considered view that complainant has failed to prove its case against accused. Complainant in his cross-examination stated that he had not issued notice to accused Lachhman Singh. He even did not give loan to him. He has admitted that as per statement of account of Lachhman Singh he had taken loan of Rs.2 lakhs and repaid Rs.1,40,000/-. He has stated that the cheque was issued and bounced in their bank. In this case, nothing was written or happened in his presence. By resolution Mr. Virinder was authorized to contest the case under Section 138 of NI Act. He did not bring the original loan file. So complainant failed to prove its case. Hence, the present complaint is dismissed and accused is ordered to be acquitted of the notice served upon him. Bail bonds and surety bonds are not to be discharged till the expiry of period of appeal or revision, if any. File be consigned to the record room.”

8. Proviso (c) to Section 138 of the Act provides that Section 138 of the Act shall not apply unless the drawer of the cheque fails to make payment of amount to the payee within fifteen days of the receipt of the notice.

9. The authorised representative in his cross-examination specifically stated that he had not issued the notice. Not only this, for the reasons best known, he had not produced the original record.

10. The contention that presumption under Section 139 of the Act was not considered lacks merit. The applicability of Section 138 of the Act would be on the failure of the drawer of the cheque to pay the amount within fifteen days of the receipt of the notice.

11. In Dashrath Rupsingh Rathod v. State of Maharashtra and another, Criminal Appeal No. 2287 of 2009, decided on 1.8.2014, the Supreme Court analysing Section 138 of the Act held:

“31. To sum up:

(i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is commit