Criminal Misc.No.A- 544-MA of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.No.A- 544-MA of 2009 Date of decision : 26.10.2009 M/s DHP Leasing Ltd. .....Appellant Versus Sukhwinder Singh ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. A.K.Bakshi, Advocate for the appellant. S. D. ANAND, J. The appellant filed a prosecution under Section 138 of the Negotiable Instruments Act against the respondent-accused on an allegation that the latter had issued the impugned cheque of Rs.4,48,570/- in order to discharge an existing financial liability. The learned Trial Magistrate, on appreciation of the material obtaining on the file, held that the averred liability of the respondent- accused on the relevant date of hearing had not been proved to the extent of Rs.4,48,570/-. The learned Magistrate refused to rely upon a plea of the appellant that this cheque was issued in lieu of discharge of part liability, while the existing liability otherwise was much higher. The hypothecation agreement was not produced. Statement of accounts Ex. C1 reveals that no balance was due on 28.5.2004. CW1 Resham Singh had conceded that the cheque in dispute had been issued as a security and it was to be returned later on.( “CW-1 has in clear words stated that the cheque in dispute was given as security which was to be returned later on.”). The plea raised by the learned counsel for the appellant that the learned Trial Court ought to have convicted the respondent-accused as he refrained from entering the witness box is neither here nor there. A party launching a prosecution has to prove the case on its own. It cannot ask for an indictment just because the person being prosecuted does not Criminal Misc.No.A- 544-MA of 2009 -2- **** enter the witness box. The following finding recorded by the learned Trial Magistrate proves that cheque had been given as security and that it was misused:- “Accused has taken a specific stand that he had once taken a loan from the complainant and during that dealing the blank cheque obtained for security purposes have been misused. This plea of accused stands proved on record from the testimony of CW-1 Resham Singh who has in clear words stated that the cheque in dispute was given as security which was to be returned later on. So, accused has succeeded in proving that the cheque issued for security has been misused. Complainant has failed to prove that the cheque in dispute was issued to discharge a legally enforceable debt and its stands proved on record that the statement of accounts produced by the complainant are not properly prepared.” I find that the findings of fact recorded by the learned Trial Judge are relatable to the material obtaining on the file and there is nothing perverse in the appreciation of evidence by the learned Trial Judge. Dismissed. October 26, 2008 (S. D. ANAND) Pka JUDGE Note: Whether to be referred to Reporter: Yes/No