IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 595 of 2002. Date of Decision: 9th March, 2010. Yoginder Dutt Sharma .. Appellant. Versus Roshan Lal Kaushal .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Sanjay K. Sharma, Advocate. For the respondent: Mr. Amit Singh Chandel, Advocate. Surinder Singh, J (oral) . Challenge in this appeal is to the judgment of acquittal passed by the learned trial Court in complaint No.20-3 of 1996, decided on 1st November, 2001, whereby the respondent was acquitted for the offence punishable under Section 138 of the Negotiable Instrument Act. To be precise, the respondent had issued a cheque Ext.PW- 1/A for Rs.21,248/- in favour of the appellant on 8th July, 1995 for the payment of ration taken by his labour from the shop of the appellant. He presented the cheque to his banker for its collection from State Bank of India on 11th July, 1995 and 17th July, 1995 but it bounced for want of sufficient funds. He made another try on 19th December, 1995, but it was also returned back with an endorsement ‘payment stopped by the drawer’. Thus a notice was sent on 27th December, 1995 requesting him to make the payment within 15 days of its receipt, but it was returned unserved, the 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - envelope containing the notice with AD is Ext.PW-1/K and PW-1/L, respectively. The complaint was filed on 23rd January, 1996. Preliminary evidence was led and the respondent was summoned to face the charge under the above Section. He denied the allegation, hence put on trial. The complainant led his evidence, respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied that the cheque was ever presented to the bank on 19th December, 1995 or that any notice as alleged was issued. According to him, the cheque was issued as a security. At the end of trial, the learned trial Court acquitted the respondent precisely on the ground that the appellant has failed to prove his case as alleged. I have heard the learned Counsel for the parties and reexamined the record. The appellant alleged that the cause of action had finally accrued to him on 19th December, 1995, when the cheque returned back with the endorsement Ext.PW-1/F ‘payment stopped by the drawer’ and sent the notice calling the respondent to make the payment within 15 days from the receipt thereof. However, from the record it is not at all established that the cheque in question was tendered for payment on 19th December, 1995 through State Cooperative Bank as alleged. CW-3 Shyam Lal an official of the State Bank of India has proved the statement of account Ext.CW-3/A of the respondent. It did state about having received the cheque at two earlier occasions but not on 19th December, 1995 as stated by the complainant in his statement and also in the notice, copy of which is Ext.PW-1/H. Significantly, CW-3 aforesaid in his cross-examination categorically stated that as per statement of account Ext.CW-3/A, lastly the - 3 - appellant had presented the said cheque on 20th October, 1995 and admitted that cheque Ext.PW-1/A was never presented thereafter for collection. He also failed to produce any document of the respondent instructing the bank to stop the payment. Further, the perusal of letter Ext.PW-1/G vide which the cheque was sent for collection on 19th December, 1995 by the State Cooperative Bank is also of no consequence. The date on its top is also overwritten. Not only this, even the dates in the certificate Ext.CW-1/M alleged to have been issued by the HP State Cooperative Bank, Shimla qua presentation of cheque on 19th December, 1995 are also tampered with, which raises a doubt in the contentions raised by the appellant. Since the appellant has failed to prove the cause of action as asserted by him, therefore, no statutory presumption can also be drawn in his favour and the relief could not be granted to him, also for the reason that he failed to place on record and prove the accounts maintained by him about the ration purchased by labour of the respondent. In these circumstances, onus to prove no liability does not pass over to the accused. For the reasons aforesaid, the acquittal of the respondent cannot be interfered with. Hence, the appeal is without merit, as such, the same is dismissed. The respondent is discharged from the bail bonds entered upon by him at any time during the proceedings of this case. Send down the record. March 9, 2010. (Surinder Singh), (rc) Judge.