The Complainant must prove the existence of a legally enforceable debt under Section 138 of the Negotiable Instruments Act, which was not established in this case.

JUDGMENT :

(VENKATA JYOTHIRMAI PRATAPA, J.)

Impugning the judgment dated 09.11.2022 passed in C.C.No.410 of 2017 on the file of the Court of II Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of First Class, Palakol acquitting the Accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 , [For short ‘the N.I.Act’] the Appellant/Complainant preferred the present appeal.

2. The case of the Complainant is that, the Accused had borrowed an amount of Rs.3,00,000/- from him by way of hand loan. Thereafter, inspite of several demands of the Complainant, the Accused had issued a cheque bearing No.693337, dated 05.09.2007 for an amount of Rs.3,00,000/- drawn on ICICI Bank, Vijayawada. On presentation of the said cheque before State Bank of Hyderabad, Palakol branch for collection, the same was returned as there were no sufficient funds in the account of the Accused vide return memo dated 11.09.2017. As such, on 03.10.2007 the Complainant got issued a legal notice to the Accused demanding him to pay the cheque amount, and having received the said notice, the Accused neither paid any amount nor gave any reply to the Complainant. Hence, the complaint.

3. During the course of trial, on behalf of the Complainant, he was examined as P.W.1 and Exs.P.1 to P.6 were marked. On behalf of the defence, no oral or documentary evidence is adduced. After hearing both the counsel and on appreciation of the evidence on record, learned Magistrate found the Accused not guilty of the offence punishable under Section 138 of the N.I.Act and acquitted him under Section 255(1) of the Code.

4. Aggrieved by the impugned judgment of acquittal, the present Criminal Appeal has been preferred by the Complainant.

5. Heard Sri P.L.Narasimhara Rao, learned counsel for the Appellant/Complainant and Sri A.Sai Naveen, learned Amicus Curie on behalf of Accused.

6. Learned counsel for the Appellant would submit that the learned Magistrate failed to see that the Complainant discharged his initial burden to establish his case. It is submitted that the Complainant proved his case by examining himself as P.W.1 and marking Exs.P.1 to P.6 on his behalf. Learned counsel would finally submit that the learned Magistrate erred in acquitting the Accused. Hence, prayed for quashment of the case against the Petitioners.

7. Per contra, learned Amicus Curie would submit that the existence of legally enforceable debt between the Complainant and the Accused has not been proved. It is further submitted that the date of borrowal of the said amount has not been mentioned in the complaint. It is submitted that the financial capacity of the Complainant to lend such an amount, is not proved. In support of his contentions, learned Amicus Curie has placed reliance on the judgment of the Hon’ble Apex Court in Basalingappa vs. Mudibasappa , [ 2019 (4) Supreme 366 ]

8. A bare perusal of the impugned judgment would disclose that the learned trial Judge acquitted the Accused from the alleged offence on the ground that the Complainant had failed to prove the existence of a legally enforceable debt. As rightly observed by the learned trial Judge, the date and place of borrowal of the said amount by the Accused from the Complainant have not been mentioned either in the complaint or in the chief examination affidavit of P.W.1. As seen from the cross examination of P.W.1, he clearly admitted that he maintains account books of his business and reflect all the transaction details therein. He further admitted that the account books do not show the present transaction. He further admitted that he has no documents to show that he gave the said amount to the Accused. He further admitted that, the does not know the contents of the Ex.P.5 legal notice. He has not filed any document to show that he was in possession of Rs.3,00,000/- on the date of alleged lending. In such circumstances, the Complainant had failed to prove the date of lending the said amount. As such, as r