1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 168-MA of 2008 (O&M) Date of Decision: 28.11.2008 *** Kamaljeet Singh .. Appellant Vs. Rajinder Singh .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. N.S. Gill, 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 22.11.2007 passed by learned Judicial Magistrate Ist Class, Jalandhar by virtue of which the respondent- accused has been acquitted. According to the complainant the accused-respondent obtained a loan of Rs.50,000/- from him and issued a cheque dated 9.7.2005 for an amount of Rs.25,000/- to discharge his outstanding liability towards the complainant, which on presentation was dishonoured. It was further alleged that since the accused failed to make payment despite issuance of legal notice, the instant complaint was instituted, which on conclusion of trial, as referred above, resulted into acquittal of respondent. Hence the present appeal. 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 2 debt; and (iii) That the cheque so issued had been returned due to insufficiency of funds. In the instant case, it is emerges out from a perusal of the impugned judgment that admittedly no instrument with regard to the alleged loan, the mode and the date on which it was advanced, was produced by the complainant and what impressed the trial court is the admission of the complainant himself to the effect that the loan was extended to the respondent-accused in the month of May/ June 2006 while the cheque was dated 9.7.2005 i.e. prior in time from the taking of alleged loan amount by the accused, as an advance. This led the trial court to conclude on the strength of cases of John K. John V. Tom Varghese 2007(4) RCR (Criminal) 807 and 2006(2) Apex Court Judgments 611 (SC) 411 that the impugned cheque was issued in advance and at the time when it was issued, there was no legally enforceable liability to be discharged by the accused and the plea of accused carries substance in it that the cheque was being issued in lieu of security as he was having business dealings with the complainant. 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