JUDGMENT:

The complainant is the appellant herein questioning the acquittal of the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.

2. Heard the learned counsel for the appellant/complainant and the learned Assistant Public Prosecutor appearing for respondent-State.

3. Briefly, the case of the complainant is that while he was doing business in garments, accused had taken goods and to clear the outstanding of said goods, cheque was issued. However, when the said cheque was presented for clearance, returned un-paid for the reason of ‘account closed’ by the accused. Having issued a notice, the case was filed, since the amount covered by the cheque was not paid.

4. During the course of trial, the complainant examined himself as P.W.1 and also P.Ws.2 to 4, Managers of the Bank. He relied on the documents/Ex.P.1 to P.15. In defense, it is the specific case of the accused that Rajender Kumar Agarwal was running business of complainant firm which is M/s.Jyoti Textiles and also part of “Sri Venkateshwara Dresses and Matching Centre” which was being run by the accused. In fact, the purchases were made by the Rajender Kumar Agarwal. During the course of business, specifically Court found that 37 credit bills were issued in the name of accused shop/Ex.P.12 had the name of accused in some of the bills. However, remaining bills were in the name of Rajender Kumar Agarwal or his colleagues. The learned Magistrate found that bills were prepared and signed by said Rajender Kumar Agarwal and by his own staff which is apparent from the bills produced by the accused. In all, the accused placed on record Exs.D.1 to D.42.

5. Learned Magistrate found that the complainant failed to prove that there was legally enforceable debt covered by the cheque though it is admitted that cheque contained signature of the accused. However, initial burden is always on the complainant to prove that there is an outstanding and only then burden shifts on to the accused under Section 139 of the N.I.Act. to discharge the presumption.

6. Learned counsel appearing for the appellant/complainant would submit that once the issuance of cheque is admitted and signatures on the cheque are admitted, the trial Court committed an error in dismissing the complaint only on the ground that outstanding was not proved by the complainant.

7. As already discussed, the burden is always on the complainant to show that there is an outstanding against the cheque in question. Only for the reason of cheque containing signature of the accused, it cannot be said that there is an outstanding in the present facts. The accused had entered into witness box and clearly explained the manner in which the Rajender Kumar Agarwal had also filed complaints in three different C.Cs. All the three documents were placed on record. When it is admitted by the complainant that some of the bills were in the writing of said Rajender Kumar Agarwal and he was running business of complainant and also part of the accused Company, the said Rajender Kumar Agarwal ought to have been produced by the complainant to show in what circumstances, the bills were produced by the accused had his name. Failure to examine said Rajender Kumar Agarwal and also failure to explain why the documents issued in favour of the accused contained signatures and the name of Rajender Kumar Agarwal, no infirmity is found in the findings of the Court below.

8. Accordingly, the Criminal Appeal is dismissed. Miscellaneous applications pending, if any, shall stand closed.

_________________ K.SURENDER, J Date: 21.08.2024 dv THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1293 OF 2012 Dt. 21.08.2024 dv