JUDGMENT :

SAROJ YADAV, J.

1. This criminal appeal has been filed by the appellant against the judgment and order dated 26.05.1999 passed by Judicial Magistrate Ist, Barabanki in Complaint Case No. 662 of 1999 ( Narendra Singh vs. Jas Karan Lal Verma ) under Section 138 of Negotiable Instruments Act 1881, Police Station Kotwali City, District Barabanki, whereby the accused/opposite party was acquitted.

2. The necessary facts for disposal of this appeal are as follows:

A cheque was issued by the respondent in favour of the appellant and that was dishonoured. On 06.05.1998 the appellant sent a registered notice to the respondent within the prescribed time of 15 days. The notice so sent was received by the respondent on 14.05.1998 but the respondent did not pay the cheque amount to the appellant. Thereafter the appellant filed a criminal complaint against the respondent. In the complaint the appellant alleged that the respondent purchased Mentha Oil from the appellant and the payment was towards the Mentha Oil but the cheque was dishonoured.

3. The concerned Magistrate recorded the statement of the complainant under Section 200 of Cr.P.C. and summoned the respondent. Thereafter, the statement of the complainant was recorded under Section 244 of Cr.P.C. Thereafter, the concerned Magistrate framed the charge against the accused respondent under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act”). The accused respondent denied the crime and claimed to be tried. The complainant was cross-examined under Section 246 of Cr.P.C. He also produced one witness namely Duryodhan Prasad as PW2. After close of evidence of complainant/ appellant, the statement of accused/respondent was recorded under Section 313 Cr.P.C. wherein he denied any contract of sale and purchase of Mentha Oil and issuance of cheque. He also denied receipt of any notice through Registered Post. He stated that he issued a cheque of Rs.45,000/- in lieu of earlier contractual work. He further stated that some of cheques were stolen from his cheque-book about which he informed to the Bank and Bank cancelled the cheques so stolen and stopped the payment of the stolen cheques. The respondent examined DW1-Dinesh Chandra Sharma, Branch Manager of Union Bank of India to prove the fact that his cheques were stolen and he applied to the Bank to cancel the cheques and stop the payment.

4. After close of evidence, learned trial Court heard the arguments of both the parties. On the basis of evidence available on record and the arguments advanced, the trial Court concluded that the complainant/appellant did not prove the fact that the cheque was issued by the respondent/accused under his signature. Learned trial Court gave reasons that once the signature on the cheque was denied by the person issuing i.e. respondent then it was the duty of the appellant to get proved the signatures of the respondent but he did not adduce any evidence to prove the fact that the signature was of the respondent. Learned trial Court further gave the reasons that DW1 produced by the respondent to prove the fact that cheques of the respondent were stolen and he moved an application to get the cheques so stolen cancelled and stop the payment. DW2-Branch Manager of the concerned Bank proved from his evidence that the respondent moved an application in his Bank stating that some cheques were stolen by somebody so he prayed for stopping the payment and stop payment was made on 28.09.1996. It is proved by the DW1-Branch Manager that the payment of cheque was stopped on the application of the respondent. Learned trial Court further gave the reasons for dismissing the complaint that the signature on the receipt of notice has also been denied by the respondent and the same has not been proved and