The burden of proof lies on the complainant to establish a legally enforceable debt in dishonor of cheque cases, and appellate courts must exercise caution in interfering with acquittals.

The present appeal is listed since 2.1.2024. The appeal is of year 2012. Considering the same, appeal is considered on merit.

2. The present appeal is filed u/S.378 of Cr.P.C against order passed by JMFC, Indore in Criminal Case No.32474/2006 on 12.10.2010 whereby the Magistrate has dismissed the complaint of the complainant.

3. As per the complaint and statement of complainant Jagdish (PW.1) he had given cheque No. 028187 of Rupees four lakh of Allahabad Bank Branch Lasudiamori, Indore on 15.4.2006 which bears the signature of the respondent accused. He deposited the same in the Bank of India Branch, Bijalpur, Indore. The cheque was dishonoured with a note that sufficient amount is not in the account of the accused. The applicant sent a notice vide Ex.P/4 which was received by accused on 10.5.2006. Despite notice payment was not made and thereafter the complaint was filed. The trial court after considering the testimony of PW.1 complainant Jagdish, held that since the notice was sent on correct address and, therefore, it has presumed that the same was received by the respondent. The trial court acquitted the accused person mainly on the ground that the complainant could not prove the transaction between the parties. He deposed that he is having a tea stall and earns Rs.200/- per day by selling tea and he paid Rupees four lakhs to the accused by selling his shop, but in support of his allegations in the complaint and the affidavit he did not produce any evidence. He deposed that the said amount was paid in the presence of Balkishan, but he also did not support his case. Thus, the complainant could not produce the transaction and existence of legally enforceable debt or liability u/S.138 of Negotiable Instrument Act, and, therefore, the presumption under Section 118-A and 139 would not attract because the complainant has failed to discharge his initial burden. In this regard, a reference may be made to the judgments passed in the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & another AIR 2006 SC 3366, Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54, Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513, Basalingappa Vs. Mudibasappa AIR 2019 SC 1983 and also the judgment passed by this Court in the case of Pankaj Vs. Anil Kumar Jain 2009(2) DCR 730. In the case o f Mallavarupu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm 2008(7) SCC 655 the Apex Court held that by virtue of clause (a) of Section 118 Court is obliged to presume that the promissory note was made for consideration until the contrary is proved. Initial burden lies on the defendant to prove to non existence of consideration which would lead the court to believe the non existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal.

4. Further, the complainant has also failed to prove his financial condition to pay Rupees four lakhs as a loan to the accused.

5. In view of the aforesaid facts and law, this Court finds that the complainant has failed to discharge his onus to prove the existence of legally enforceable debt or liability. Therefore, no presumption u/S.118 and 139 of Negotiable Instrument Act would attract.

6. It is to note here that in an appeal against acquittal, the Hon'ble Supreme Court in the case of State Vs. K. Narsimhachary reported in (2005) 8 SCC 364 said that as per well settled principle, if two views are possible, the appellate Court should not interfere with the findings of acquittal recorded by the lower Court; it can only be interpreted where the material on record leads to sole inescapable conclusion of the guilt of accused. In the case of T. Subramanian Vs. State of Tamil Nadu, (2006) 1 SCC 401 , the Apex Court has reiterated the same principle relying upon said judgment and by interfering in appeal the judgment of the High Court was set aside restoring the judgment of the trial court acquitting the accused In th