SHANKARSINGH Vs. MAHENDRA @ RAMESHWAR

JUDGEMENT

(1.) Being aggrieved by judgment of acquittal from the charge under Section 138 N.I. Act dated 21.02.2016 passed by JMFC, Indore in Criminal Case No.504/13, the petitioner/complainant has preferred the present petition for grant of leave to appeal.

(2.) Short facts of the case are that the complainant had filed a complaint before the learned Trial Court under Section 138 of N.I. Act stating that the accused, who was known to him, asked for a loan of Rs.1,04,000/-, which he granted. He issued a cheque bearing no.697477 dated 08.11.2008 for repayment of the amount assuring that whenever the cheque will be presented to the bank, it shall be honored, but when presented, the cheque was dishonored due to insufficient funds in drawer's account. After following statutory provisions, the petitioner filed a complaint before the learned trial Court which ended in the acquittal of the accused.

(3.) The petitioner has preferred the present petition on the grounds that the judgment of the learned Trial Court is against the facts and contrary to the law and statutory provisions having force on the subject. Learned Trial Court failed to apply the statutory presumption available under Section 118(a) and 139 of N.I. Act in favour of the applicant. The judgment of the learned trial Court is erroneous and is liable to be set aside since it casts whole liability to prove the case on the petitioner even when the execution of the cheque is admitted. The learned trial Court failed to appreciate that existence of legally enforceable debt could not be rebutted by the accused/respondent. The learned trial Court committed error in holding that the cheque was issued in lieu of security and the provisions of Section 138 of N.I. Act does not attract on the cheques issued for security. The learned trial Court further erred in holding that all the ingredients constituting offence under Section 138 of N.I. Act were not proved even when no evidence was led by the accused in this regard. It is, therefore, prayed by the petitioner to grant leave to appeal.