1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 323-MA of 2008 O&M) Date of Decision: 28.11.2008 *** Surjit Singh Garg .. Appellant Vs. Som Nath .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Sanjay Jain, Advocate for the applicant-appellant. *** ARVIND KUMAR, J. The present applicant-complainant is seeking leave of the Court to prefer an appeal against the judgment dated 11.4.2008 passed by learned Judicial Magistrate Ist Class, Ambala by virtue of which the respondent- accused has been acquitted in a complaint under Section 138 of Negotiable Instruments Act filed by the complainant-appellant for dishonouring of cheque for an amount of Rs. 61000/-. I have heard learned counsel for the applicant-appellant and have gone through the paper-book carefully. The pre-requisite to prove an offence under Section 138 of the Negotiable Instruments Act, 1881 are:- (i) That there is a legally enforceable debt; (ii) That the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) That the cheque so issued had been returned due to insufficiency of funds. In the instant case, a perusal of the impugned judgment reveals that although the complainant alleged that against the loan so obtained by the 2 respondent initially a pronote was issued and lateron the accused issued the cheque to discharge his outstanding liability, but neither any description of the said loan viz. as to when it was extended and what was the loan amount, nor the copy of any instrument allegedly executed by respondent in respect of the loan amount was produced on record. The impugned cheque was for an amount of Rs.61,000/-, but nothing was brought on record by the complainant to prove the source of that amount, as admittedly there was no reflection of the alleged transaction in the income tax returns furnished by the complainant, as required under the Income Tax Act. Taking into account these facts, the learned trial court while relying upon the cases of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008(1) RCR (Civil) 498, concluded that the complainant has failed to prove that the accused was under any legal obligation to pay legally enforceable debt or that the said instrument was issued in discharge of his said legally enforceable liability. Finding, that the pre-requisites to prove an offence under Section 138 of Negotiable Instruments Act are conspicuously missing, the learned trial court rightly acquitted the accused-respondent and no fault could be found with the approach of the learned trial court. There is no illegality or perversity in the impugned judgment. Therefore, this Court is not inclined to grant the leave asked for and the application is accordingly dismissed. (ARVIND KUMAR) JUDGE November 28,2008 Jiten