The complainant must prove the existence of a legally recoverable debt under the Negotiable Instruments Act; failure to do so results in acquittal.

The present Criminal Appeal under section 378 Cr.P.C. has been filed against the judgment of acquittal dated 26.07.2022 passed by CJM, Barwani in criminal case No. 57/2017. Heard on I.A.No. 12622/2022 for leave to appeal.

2. Initially, an objection was raised that leave to appeal is not maintainable before this Court. This Court by order dated 19.09.2022 decided the question of maintainability and held that against the judgment of acquittal in the proceedings under section 138 of Negotiable Instruments (in short 'the N.I. Act') , leave to appeal is maintainable.

3. A complaint was made that on 19.12.2012 complainant had given loan of Rs. 2 Lacs to the accused Gangaram for starting business because of his cordial relationship with the accused. Accused had assured that he would refund the said amount. Thereafter the complainant started demanding the said amount but the same was not returned. On 15.7.2013, the accused had given a cheque of Rs.2 Lacs vide cheque no. 008361 of Union Bank of India, branch Sendhwa. The said cheque was dishonoured by the bank with the memo of insufficient fund in the account of the accused. Thereafter the complainant served a legal notice of demand on 14.8.2013 which was received by the accused/respondent on 17.08.2023. However, within the time prescribed the cheque amount was not paid and thereafter the complaint was filed. By the impugned order, the complaint has been dismissed and the respondent has been acquitted.

4. After hearing learned counsel for parties and considering the testimony of Kartarsingh (PW-1), Rajeshwar (PW-2) and Ashish (PW-3) and Ex.P/1 to P/8, this Court found that cheque was not issued in the name of complainant but same was issued in the name of Gandhi Autodeal Tractor. In the notice also the details of payment of loan amount have not been mentioned. Even details are not mentioned in the complaint and in his statement under section 200 Cr.P.C..From the aforesaid evidence,this Court finds that applicant could not discharge initial burden of existence of legally recoverable debt or liability under section 138 of N.I. Act and therefore, presumption under section 118-A and 139 would not attract.

5. In the defence, the accused submitted that applicant is running a Autodeal shop and service center at Barwani and said cheque was issued in lieu of sale consideration of tractor in the name of Gandhi Autodeal Tractor. It is further brought on record that 3 cheques were issued in the name of Gandhi Autodeal Tractor and not in the name of applicant and out of 3 cheques, 1 cheque was dishoured and other two cheques were credited. It was further proved that remaining amount of sale consideration of tractor was paid vide Ex.P/1 to P/5.

6. After hearing learned counsel for parties, this Court finds that applicant has failed to establish the ingredients of section 138 of N.I. Act by discharging his initial burden to prove the existence of legally recoverable debt or liability. The cheque was not issued in the name of applicant in order to discharge alleged loan transaction but cheque was issued in the name of Gandhi Autodeal Tractor for payment of sale consideration of tractor. Since the complainant has failed to discharge his onus to establish the existence of legally recoverable debt or liability, therefore, the provisions of section 118-A and 139 of N.I.Act would not attract. Even otherwise, the respondent has proved his defence by stating that aforesaid cheques were issued for payment of sale consideration in the name of Gandhi Autodeal and not for discharge of alleged loan. In view of aforesaid, this Court does not find any error in the impugned judgment of acquittal. 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