IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 15.05.2025 Subhash Chander ...Applicant Versus Sukhraj Singh ... Respondent CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT Present : Mr. Arshdeep Singh Sandhawalia, Advocate for Mr. Vikram Anand, Advocate, for the applicant.

None for the respondent.

N.S.SHEKHAWAT , J. (Oral)

1. The applicant has filed the present application under Section 378(4) Cr.P.C. with a prayer to grant the leave to appeal against the impugned judgment of conviction dated 26.03.2012 and the order of sentence dated 28.03.2024 passed by the Sub-Divisional Judicial Magistrate, Nakodar, whereby, the respondent has been acquitted of the notice of accusation under Section 138 of the Negotiable Instruments Act 1881 (hereinafter to be referred as 'the Act').

2. The applicant had filed a complaint before the trial Court by alleging that he was the proprietor of a firm M/s Hans Raj & Sons at village Mehatpur and was running the business of commission agent. Even, the respondent/accused was a customer of applicant and he used to sell his crop through complainant. He used to avail loan from the complainant from time to time and adjusted at the time of sale of the crop. On 30.06.2011, the parties settled their disputes and accounts and a sum of Rs. 4.90 lakhs including the interest was found outstanding against the respondent. Consequently, in order to discharge the complete liability, the respondent issued a cheque 890642 dated 30.06.2011 for a sum of Rs. 4.90 lakhs drawn at Capital Local Area Bank, Branch Mehatpur and assured that the cheque will be honoured on presentation, however, when the cheque was presented, the cheque was returned by the bank with the remarks “funds insufficient”, as per the memo dated 01.07.2011. Thereafter, the applicant issued a statutory notice to the respondent. However, even after receipt of the said notice, the respondent failed to clear the outstanding amount and did not pay the amount equal to the dishonoured cheque. Thus, the complaint was filed by the applicant against the respondent.

3. During the course of trial, a notice of accusation under Section 138 of the Act was served upon the respondent. After appearance of the respondent, the trial formally started and the applicant himself appeared as CW1 and number of documents were exhibited. Even, in his statement under Section 313 Cr.P.C., the respondent had denied the allegations and stated that the cheque did not bear his signatures nor he had borrowed any amount from the applicant. However, he did not lead any defence evidence.

4. In the present case, finally the case was taken up by the trial Court and trial Court acquitted the respondent by making the following observations:-

“14. The perusal of cross-examination of complainant provides that he has not only failed to tell the amount which was allegedly borrowed by the accused but he has also not provided any date on which the alleged amount was borrowed. There is also no details of alleged principal amount and interest accrued upon it. In the opinion of court, the statement of account of accused, which was lying with complainant was the best evidence to prove the allegations of complaint. Rather, this court is bound to draw adverse inference against complainant to the extent that his contentions are not correct. As the complainant has not brought on record the statement of account, therefore, this court is not able to adjudicate whether any amount was borrowed by the accused or not. Even otherwise, complainant, in his cross- examination has stated that he cannot tell the amount, which was borrowed by the accused from him.

15. In view of version of complainant, given in cross- examination and mentioned in preceding para of this judgment, this court is of the opinion that complainant has failed to prove on record execution of cheque by accused for a sum of ………..

Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a l