The burden of proof lies on the complainant to establish the case beyond reasonable doubt in a complaint under Section 138 of the NI Act.

JUDGMENT

1. Present appeal has been preferred by appellant- complainant [wrongly mentioned under Section 378(5) of CrPC in place of Section 378(4) of CrPC, as vide order dated 15/03/2021 passed by a Coordinate Bench of this Court in MCRC No.1532 of 2016, it was directed that an application for leave to appeal is not required to be registered and directly Criminal Appeal can be registered], challenging the judgment of acquittal dated 12/01/2016 passed by the Court of JMFC, Shivpuri (MP) in Criminal Case No.2280 of 2015, by which the respondent- accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act ( in short '' the NI Act'')

2. Brief facts of the case, in short, are that respondent- accused is running a business of contract and he used to borrow cement and other materials from the shop of complainant -appellant (Firm). On account of this, both respondent and appellant were in good terms in regard to business transaction. On 29/07/2015, accused had taken some bags of JP cement worth Rs.50,000/-vide bill no.51 from the complainant- Firm and issued an account payee cheque no.096950, dated 02/08/2015 of Axis Bank, Branch Shivpuri in favour of Shri Ghanshyam Das Lakhera, the proprietor of firm/Shri Bagjedi Steel Traders and when the same was deposited for encashment by the complainant- Firm in his account holding bank i.e. Bank of India, Branch Shivpuri, the same was dishonoured due to ''insufficiency of fund'' in the account of respondent-accused and the same was returned back with an endorsement dated 29/08/2015 which was received by the complainant on 31/08/2015. Thereafter, a legal notice i.e. 07/09/2015 was issued to the respondent -accused through advocate by complainant which was received by respondent- accused on 10/09/2015. Thereafter, when the borrowed amount was not paid to the complainant-Firm by the respondent-accused, a complaint under Section 138 of the NI Act was filed before the Court of JMFC. The learned JMFC vide impugned judgment after recording statements as well appreciating evidence of the parties, acquitted the accused- respondent of charge under Section 138 of the NI Act.

3. It is submitted by learned counsel for the appellant- complainant that the judgment passed by the learned JMFC is not sustainable being contrary to law. It is undisputed fact that the accused- respondent gave a cheque and the same was dishonoured. It is further submitted that although the legal notice was received by the respondent-accused on 10/09/2015 and the complainant- appellant has established the fact that the said notice dated 07/09/2015 has been received by the respondent- accused on 10/09/2015 even after the borrowed amount was not returned back by the accused-respondent, but this fact has also not been considered by the Court of JMFC. The Bill Ex.P6 has been merely discarded by the learned JMFC on the ground that the respondent- accused has denied the authenticity of the bill and it does not either bear signature of the complainant or the accused, therefore, on the basis of said Bill, it cannot be said that there is any due of borrowed amount on the respondent- accused. The learned JMFC has not properly appreciated the evidence and came to a conclusion by passing the impugned order that no case is made out against the accused-respondent under Section 138 of the NI Act. It is further submitted that the disputed cheque was issued in favour of complainant-Firm and this fact has also not been disputed by the respondent- accused but the learned JMFC has acquitted the accused only on the ground that the complainant- appellant did not submit any requisite document as well as registration certificate of the Firm. This finding recorded by the learned JMFC is wholly contrary as well as foreign to law. It is submitted by the learned counsel for the appellant-complainant that the procedural defects and irregularities which are curable should not be allowed to defect substantive rights or to cause inju