ASHISH KUMAR AGRAWAL Vs. NITESH KUMAR GOYAL

JUDGEMENT

(1.) This application under Sec. 378(4) of Code of Criminal Procedure has been filed by the applicant seeking leave to file an appeal against the judgment of acquittal dtd. 24/9/2019 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 Sec. 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 Sec. 138 of N.I. Act and it was averred in the complaint that a sum of Rs.10.00 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.10.00 Lakhs dtd. 28/3/2013. The said cheque was dishonoured and resultantly the respondent No.1 was liable to be dealt with under Sec. 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.10.00 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.