N HIGH COURT OF CHHATTISGARH BILASPUR \N Criminal Misc. Petition No.133 of 2008 APPLICANT: Sunil Jain S/o Bansi Lai Jain; aged about 44 years, Proprietor Niharika General Stores, Daiii Rajahara, P.S. Rajahara, Distt. Durg (C.G.) Versus ON—APPLICANT: Govind S/o Nandu (Harijan), aged about 52 years, R/o 55-A, Railway Colony, Dalli Rajahara, working place Railway Hospital Dalli Rajahara, Distt. Durg (C.G.) {Application for grant of leave to appeal under Section 378 (4) of the Code of Criminal Procedure, 1973} Present: Mr. Suresh Verma, counsel for the applicant. Mr. Gurudev l. Sharan, counsel for the non-applicant. Single Bench: Hon’ble Mr. T.P. Sharma, J ORAL ORDER (5—3~2010) 1. The applicant has filed this application against the judgment of acquittal dated 22—1-2008 passed by the Judicial Magistrate First Class, Balod in Criminal Case No.722/2007, whereby learned Judicial Magistrate First Class has acquitted the non—applicant of the charge under Section 138 of the Negotiable instruments Act. {Ba 2. l have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 3. Brief facts necessary for the disposal of this application, according to the complaint of the applicant, are that the non-applicant took a loan of , Rs.75,000/— from the applicant and issued a cheque dated 1—6-2007 which was presented for encashment before the Bank on 2—6—2007, same was dishonoured vide intimation dated 11—7-2007 on which the applicant issued notice of payment to the non~applicant dated 13-7-2007 N @. u t the same was not paid whereupon the appiicant filed complaint under Section 138 of the Negotiable Instruments Act. The non-applicant has denied the charge. After affording opportunity of hearing, the Court below has acquitted the non-applicant on the ground that the appiicant has faiied to prove that the cheque has been issued for payment of debt or discharge of liability. . Learned counsel for the applicant vehemently argued that once execution and issuance of cheque‘is admitted by the accused, burden is on the accused to prove that same was not issued for discharge of debt or liability. Learned counsel placed reliance in the matter of K.N. Beena v. Muniyappan and another {2001 STPL(LE) 30364 SC} in which the Apex Court has held that the burden of proving that a cheque had not been issued for a debt or liability is on the accused. . On the other hand, learned counsel for the non—applicant opposed the application. . In the present case, issuance of cheque has not been substantially disputed. The applicant has not mentioned the date of giving loan to the non—applicant, but it appears that, cheque was issued to the applicant on 1-6-2007 and the applicant has'presented the cheque on 2'“ day i.e. 2-6- 2007 for its encashment which was dishonoured. ln his cross- examination, the applicant has admitted that he is income tax payee, he maintains his accounts and also maintains accounts relating to payment & liability. He has specifically admitted in para 3 of his evidence that he has not filed any document which would show liability of payment of the non—applicant. He has further admitted in para 3 of his‘ cross- examination that even he has not mentioned in the complaint or affidavit or notice the date of payment to the non-applicant. For the reasons best own to the c0mp|ainantlapp|icant, in spite of having documents relating to payment of money to the non-applicant, the applicant has not filed the documents before the Court or has deferred the evidence. In absence of such evidence and withholding of evidence, the only inference that the cheque in question is not for discharge of debt or liability, is possible. 7. After appreciating the evidence available on record, the Court below has acquitted the non-applicant. As held by the Apex Court in the matter of K.N. Beena (supra), burden of proof was on the accused. But in the present case, the accused has discharged his burden by adducing evidence by way of cross-examination of the applicant. ln the present case, the Court below has not committed any illegality in acquitting the non-applicant/accused. 8. The application for grant of leave to appeal is, therefore, liable to be rejected and it is hereby rejected. €333 'n