The burden of proof lies with the complainant to establish the existence of a legally enforceable debt in dishonor of cheque cases under Section 138 of the Negotiable Instruments Act.

ORAL ORDER

1. This is an application filed by the original complainant seeking special leave to appeal against the judgment and order dated 03.08.2022 passed by the learned Chief Judicial Magistrate, Idar, in Criminal Case No.386 of 2019 recording acquittal of the present respondent – original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

2. Upon hearing learned advocate Mr. Shankhshara for the applicant – original complainant, this Court by an order dated 17.10.2022 has issued notice upon the respondent – accused.

3. Mr. Manish Shah, learned advocate has appeared on behalf of the respondent- original accused. Learned advocates for the respective parties were extensively heard. The arguments were concluded and the matter was reserved for orders. Since the matter was argued finally at the admission stage, learned advocate for the applicant – original complainant has sought permission of this Court to place on record the relevant documents forming part of the record of the trial Court. The same has been taken on record.

4. In nutshell, the averments made in the complaint are reproduced as under:

4.1 The original complainant is an agriculturist and at the same time, running an establishment in the name of “Vishnu Cold Storage” at Shekhpur, Taluka : Idar, District : Sabarkantha. The respondent accused is a proprietor of the firm named “Riya Traders” and is wholesale trader of agricultural product potato. Because of the past transactions and the business relation, the complainant and the accused were known to each other. It is the case of the complainant that in the year 2015-16, the accused had approached the complainant seeking storage on rent for storing agricultural products purchased from the small agriculturist. At that stage, considering the terms with the respondent – accused, the complainant had given an advance amount in various installments to the accused to purchase agricultural product from the agriculturist. Even the rental amount, which was to be realized from the respondent – accused was not realized at the relevant point of time. According to the complainant, the amount of Rs.60 Lakhs was outstanding from the respondent accused against the rental charges of cold storage and the advance amount derived to purchase agricultural products. It is further contended that the complainant had approached the accused for realization of such outstanding amount and at every stage, the accused had assured about repayment of such amount. The complainant was constrained to issue legal notice through his lawyer on 04.12.2018, which was served by RPAD, whereby the accused was called upon to make good such payment within a period of 7 days. However, the respondent accused had though responded to the legal notice, had failed to make payment of such outstanding amount. It is further contended that the accused had drawn a cheque from his account with Sabarkantha Cooperative Bank Ltd., Idar, on 19.12.2018 for the aforesaid outstanding amount of Rs.60 Lakhs. The said cheque was drawn from the account of Riya Traders and signed in his capacity as proprietor of the said firm. At that stage, the accused had assured realization of such an amount. On such assurance, the complainant had moved with the concerned bank i.e. Bank Baroda, Jawanpura Branch, Idar, on 20.12.2018. The cheque return memo was issued by the said bank highlighting the reasons for funds insufficient. Hence, the cheque issued by the respondent accused was dishonored. In such circumstances, the original complainant was constrained to issue legal notice on 31.12.2018, which was duly served upon the respondent – accused by RPAD. Though the period of 15 days has lapsed, the respondent accused by giving vague reply had not paid outstanding amount. The original complainant was therefore, constrained to approach the Court of learned Magistrate, Idar, by lodging the complaint under Section 138 of the Negotiable Instruments act. Said complaint was regi