IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE MANINDER S. BHATTI th ON THE 26 OF APRIL, 2024 MISC. CRIMINAL CASE No. 45244 of 2019 BETWEEN:-

ASHISH KUMAR AGRAWAL S/O SHRI LAXMI NARAYAN, AGED ABOUT 36 YEARS, SUBHASH WARD KARELI P.S. KARELI TEH. AND DIST. NARSIGHPUR (MADHYA PRADESH)

.....APPLICANT (BY SHRI RAKESH PANDEY - ADVOCATE)

AND

1. NITESH KUMAR GOYAL S/O SHRI NAGARMAL GOYAL, AGED ABOUT 29 YEARS, SAMANIYA IMPEX PVT. LTD. BAGARMARA ROAD RAJEGAON TEH. AND P.S. KIRNAPUR BALAGHAT (MADHYA PRADESH)

2. THE STATE OF MP THROUGH P.S. KIRANAPUR PS KIRNAPUR BALAGHAT (MADHYA PRADESH)

.....RESPONDENTS (BY MS. SHANTI TIWARI - PANEL LAWYER FOR THE RESPONDENT/STATE AND NONE FOR THE RESPONDENT NO.1)

This application coming on for admission this day, the court passed the following:

ORDER

This application under Section 378(4) of Code of Criminal Procedure has been filed by the applicant seeking leave to file an appeal against the judgment of acquittal dated 24.09.2019 passed by Judicial Magistrate First Class, Balaghat in Complaint Case No. 3386 of 2014 whereby the respondent No.1 has been acquitted of the offence under Section 138 of the Negotiable Instruments Act.

2. Learned counsel for the applicant contends that the trial Court was approached by the present applicant by way of a complaint under Section 138 of N.I. Act and it was averred in the complaint that a sum of Rs.10 Lakhs was to be recovered from the respondent No.1 and therefore, the respondent No.1 in order to pay the said amount, issued a cheque of Rs.10 Lakhs dated 28.03.2013. The said cheque was dishonoured and resultantly the respondent No.1 was liable to be dealt with under Section 138 of N.I. Act. However, the trial Court while passing the impugned judgment concluded that as the present applicant did not clarify towards what debt or liability, the cheque of Rs.10 Lakhs was issued, therefore, proceeded to dismiss the complaint. It is contended by the counsel that under the provisions of Negotiable Instruments Act, there is a presumption in favour of the holder of the cheque once a cheuqe is in the hand of the holder and the same is submitted for encashment, upon being dishonoured the complainant gets a right to file a complaint. The complainant/present applicant by filing the complaint in the present case, discharged the primary burden of the fact that he was holder of the cheque in due course. Therefore, the respondent No.1 was duty bound to rebut the said presumption which in the present case was not done by the respondent No.1. It is further contended by the counsel that in the present case, during pendency of the complaint as well, some payments towards the total outstanding were made by the respondent No.1 therefore, the respondent No.1 could not have escaped from his liability to pay the amount mentioned in the cheque. Thus, counsel submits that the impugned judgment deserves to be set-aside.

3. Per contra, learned counsel for the respondent/State opposed the prayer.

4. Heard the submissions advanced on behalf of the applicant and perused the record.

5. A perusal of the record it reflects that the present applicant approached the trial Court by filing a complaint and in paragraph 2 of the complaint following averments were made :-

"2. ;g fd ifjoknh fxfjtk vk;ju dk izksizkbZVj gS RkFkk ifjoknh dks vkjksih ls 10]00000@& vadu nl yk[k :i;s ysuk Fks ftlds Hkqxrku ckcr ~vkjksih us iatkc us'kuy cSad ckyk?kkV ds pkyw [kkrk dza 0038002100023052 dk pdS daz 7103750002400 jkf'k 10]00000@& vadu nl yk[k :i;s fnukad 28-03-2013 dk fn;k FkkA "

6. A peruusal of the aforesaid paragraph reveals that no averments were made by the present applicant as to how the present applicant was entitled to recover Rs.10 Lakhs from the respondent No.1. There is no mention in the entire paragraph 2 that the cheque was issued to the present applicant towards any debt or enforceable liability. Undisputedly, the paragraph 2 of the complaint is silent as regards this aspect of the matter.

7. A