1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No.3488 of 2009 [Manmohan Kisanlal Laddha Vs. Rajendra Daulatrao Umbarkar] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mrs. S.W. Deshpande, Adv., for appellant. Mr. D.A. Mahajan, Adv., for the respondent. ----- CORAM : A.H. JOSHI, J. DATE : 17th June, 2010. 1. Heard. 2. The appellant’s private complaint under Section 138 of Negotiable Instruments Act has been dismissed. 3. According to the appellant, the cheque for a sum of Rs.4,09,337/- was dishonoured. 4. According to the appellant, amount of cheque corresponds to the actual dues shown in the books. 5. In relation to the proof of existing debt, the learned Magistrate has noted in the judgment as follows:- “13. Complainant specifically deposes that as per his account Rs.4,09,337/- are outstanding 2 against him. Even he does not allege that Rs.4,09,337/- are due from accused by any other means. In such circumstances when accused is admitting that his account is maintained by complainant regularly and as per law complainant is required to maintain the account still complainant has not produced the original abstract of his account, counter foil of the bills showing that there was outstanding Rs.4,09,337/- against accused. Duty is cast upon complainant under Negotiable Instruments Act, 1881 to show that there was legally enforceable debt against accused, and thereafter only the presumption can be drawn that the cheque was issued by the accused for consideration.” 6. It is, thus, clear that while the complainant pleaded that the amount – subject- matter of cheque was due on account, it is apparent that no evidence was brought by the complainant to prove existence of debt. 7. While challenging the judgment of acquittal, learned Adv. Mrs. Deshpande has placed emphasis on the admission of the accused in the cross-examination that in his books, i.e., books maintained by the accused, he had shown an amount of Rs.1,27,572-79 due and payable to Prashant Krishi Kendra. 8. The accused has set up a defence that blank cheques were given and he denies that he has given a cheque of Rs.4,09,337/- on 24th September, 2009. 3 9. Existence of liability, which is far less than the amount assured to be paid by the cheque does not bring failure to honour the cheque within the bracket of offence under Section 138 of the Negotiable Instruments Act. It is a patent case where the complainant has failed to prove existence of liability. 10. Even now while arguing the appeal, it is not shown that complainant had proved by producing the books and other admissions of the accused or other documents from which existence of debt was attempted to be proved. 11. The Judgment and order of acquittal under appeal is, thus, based on evidence on record and sound reasons and it does not call for any interference. 12. Appeal has no merit, and is rejected. Judge |Hedau| 4