The burden of proving the legally recoverable amount mentioned in the cheque under Section 138 of the Negotiable Instruments Act is on the complainant, and failure to do so may lead to the acquittal of the accused.

C.V. Sirpurkar, J.

1. This miscellaneous criminal case has been instituted on an application under Section 378 (4) of the Cr.P.C. for special leave to appeal against acquittal. It is directed against the judgment dated 20.12.2014 passed by the Court of JMFC, Sagar in Criminal Case No. 1508/2007, whereby the accused/respondent Nathu Singh was acquitted of the charge under Section 138 of the Negotiable Instruments Act.

2. The case of the complainant before the trial Court was as hereunder: the accused had taken goods worth Rs. 1,00,000/- on 4.12.2004 and worth Rs. 30,000 on 21.12.2004 from the shop owned by complainant Manish. In this regard, he executed an agreement on 04.12.2004 in favour of the complainant. On 21.12.2004, he added the price of the goods taken on that date in the agreement and again signed the same for repayment of aforesaid sum. He issued cheque No. 015941 in the sum of Rs. 1,30,000/- in favour of the complainant. The complainant presented the aforesaid cheque to the concerned Bank for encashment. However, it was dishonoured by the Bank stating that accused had closed his account. After completing the formalities, the private complaint was filed under Section 138 of the Negotiable Instruments Act.

3. The accused took the defence that in the third or fourth month in the year 2005. He was going to the shop of the complainant from his village with his cheque book and other important documents kept in a bag; however, he lost the same somewhere on the way or in the shop of the complainant. Therefore, he reported the matter to civil lines branch of State Bank of India and got his account closed on 26.4.2005. He later reopened his account. He never delivered any cheque in the sum of Rs. 1,30,000/- to the complainant. The cheque in question does not bare his signature implying thereby that the complainant had found the cheque book lost by him and had thereafter misused the cheque by committing forgery.

4. After the trial, learned trial Court held that the complainant had admitted that the matter written in the cheque was not in the hand-writing of the accused. On the basis of documents filed in defence, learned trial Court concluded that the complainant has been claiming Rs. 33,500/- more than what was actually due to him. The complainant had withheld the original bills of the goods delivered by him to the accused. The documents with regard to transaction between the parties are contradictory in nature. No explanation has been given by the complainant in this regard. Thus, the complainant had failed to discharge the burden of proving that the amount mentioned in the cheque was legally recoverable by him from the accused. Consequently, accused was acquitted extending benefit of doubt.

5. The finding of acquittal recorded by the trial Court has been assailed in this miscellaneous criminal case mainly on the grounds that this is too much of coincident that the cheque book lost by the accused fell into the hands of the complainant with whom the accused had financial dealings. It has further been contended that learned trial Court has failed to give full play to the presumptions arising in favour of the drawee of the cheque under the provisions of Negotiable Instruments Act and had misdirected itself by deciding the case as if this is a civil suit for recovery of amount.

6. On the perusal of record and due consideration of rival contentions, this Court is of the view that the statements of complainant’s witnesses Manish Jain and Nirmal Jain and defence witness accused Nathu Singh himself, need to be reappraised in the light of the provision of Negotiable Instruments Act.

7. Consequently, this application filed under Section 378(4) of the Cr.P.C. for special leave to appeal against acquittal is allowed. This miscellaneous criminal case stands disposed of accordingly.

8. Let the matter be registered as a criminal appeal against acquittal.

9. Heard on admission of this criminal appeal against acquittal.

10. For the reasons here