The complainant must prove that the cheque amount reflects a legally enforceable debt; discrepancies in amounts lead to dismissal of the case.

JUDGMENT :

1. Original complainant, who had instituted proceedings under Section 138 of the Negotiable Instruments Act, 1881 [NI Act] is hereby assailing the judgment and order of learned JMFC dated 14.03.2017 acquitting the present respondent from offence under Section 138 of the NI Act.

2. Learned counsel for the appellant appraised this court about relations between complainant-appellant and respondent-original accused regarding complainant to be a registered cooperative society involved in the business of lending loans and present respondent- accused to be its borrower. It is pointed out that vehicle loan was obtained by respondent to the tune of Rs.3,27,595/- and on date of complaint, amount of Rs.2,23,108/- was due towards accused. That, accused issued cheque for the said amount dated 10.02.2014, but it was dishonoured and therefore statutory notice was issued. However, in spite of its receipt, when there was no repayment of cheque amount, proceedings under Section 138 of the NI Act were instituted. 3. It is pointed out that all necessary ingredients for attracting Section 138 of the NI Act were available on record. Authorized person on behalf of complainant had adduced evidence at Exhibit 18. Documentary evidence of amount due was quoted in the complaint. The cheque in question which was dishonoured, was also placed along with bank memo and copy of notice. Evidence of witness on behalf of complainant had remained intact. There was strong presumption as neither issuance of cheque nor signature over it was questioned or denied and therefore, full proof case was made out.

He further pointed out that learned trial court still acquitted the accused by holding that there is mismatch between amount due and cheque amount and consequently it has been held by trial court that account extract reflecting dues was not placed on record. Simplicitor on such grounds, acquittal has been granted.

For all above reasons, learned counsel for the appellant prays to set aside the impugned judgment passed by learned JMFC by allowing the appeal. Learned counsel seeks reliance on the ruling of the Hon’ble Apex Court in the case of Bir Singh v. Mukesh Kumar (2019) 4 SCC 197.

4. In answer to above, learned counsel for the accused would submit that amount due and legally enforceable debt was not proved by complainant. It was essential for attracting the offence. He took this Court through the findings of learned trial court in para 17 and 18 and would submit that there is correct appreciation of evidence. As complainant failed to demonstrate that the cheque amount was due and legally enforceable on that date, learned trial court has correctly dismissed the complaint and hence he prays to dismiss the appeal also for want of merits.

5. After considering submissions of both sides, it seems that complainant is a registered co-operative society involved in the business of seeking deposits and extending loans. Complaint was lodged on the premise that accused had taken vehicle loan to the tune of Rs.3,27,597/- and amount of Rs.2,23,108/- was outstanding from accused i.e. towards principal as well as interest. Therefore, on demand, cheque was allegedly issued by accused but it was dishonoured. The cheque in question, bank memo, legal notice are all placed on record.

6. Fundamental defence raised in the trial court by present respondent is that amount which is claimed to be outstanding is incorrect and it is contrary to the record of the complainant itself.

7. Therefore, here, there is no dispute about loan transaction. Primary objection raised is regarding amount reflected on the cheque to be not outstanding, i.e. in other words, there was no legally enforceable debt of the amount which is appearing on the cheque in question Exhibit 28. Exhibit 27 seems to be the account extract. But the amount quoted in complaint and the one in the said extract Exhibit 27 are distinct. Learned counsel for the complainant pointed out that though there is mismatch, the society