1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CrlA(AS) 08/2021 Reserved on: 15.05.2025 Pronounced on:15.07.2025 Bashir Ahmad Bhat …..Petitioner(s)/Appellant(s) Through: Mr. Mir Manzoor, Advocate V/s Fayaz Ahmad Dar ….. Respondent(s) Through: Mr. T. A. Lone, Advocate CORAM: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL- JUDGE J UD G M E N T 1. This appeal came to be filed by the appellant challenging the acquittal order/judgment passed by the court of Ld. Judicial Magistrate 1st Class/sub judge Chadoora (Trial Court) in the above titled complaint Under Section 138 of Negotiable Instruments Act (for short the “Act”). 2. The appellant has challenged the acquittal Order/judgment on the grounds: that requirements of proof under Section 138 of the Act have been fulfilled by the appellant before the trial court in as much as the issue of cheque, presentation of the same with the bank and the Memo of dishonor of the cheque by the bank have been placed on record and proved beyond any doubt. This being so, the requirements and burden of proof on complainant under Section 138 of the Act has been discharged by him. There means no way open before the Trial Court to acquit the accused on this ground alone; that the 2 respondent/ accused has been examined twice before the trial court Under Section-242 and 342 Cr.P.C. In both the statements the respondent has admitted that he has issued the cheque in favour of the appellant which was not honored by the bank on the grounds of shortage of funds available at the credit of the respondent. There is no justification whatever available on record to discredit these admissions and to believe a fabricated defence story as against the said admission; that after having issued a cheque by the respondent/accusd in favour of the appellant, it is not available to the respondent to fabricate a story in defence which is not tenable. Issuing of a cheque for payment of an amount to the appellant is in itself a sufficient proof that respondent owed money to the appellant which he wanted to pay through the medium of the cheque. This is the essence of Section-138 of N.I. Act. After issuing a cheque no defence to the effect that the drawer of the cheque was not under obligation to draw the same is not tenable in the eyes of law especially under Section 138 of the Act. Such defence is not available to the respondent/accused. That the evidence produced by the appellant/complainant has not been appreciated in its right perspective which has caused great prejudice to the appellant/complainant. That the cheque was issued on 16.01.2015 favoring the complainant. It was presented on the same date before the bank for encashment. Memo for insufficiency of funds was issued on the same day. Notice was issued through Advocate on 23.01.2015 within statutory period. The complaint was lodged on 19.02.2015 within the statutory period. In this way the requirement under Section- 138 of the Act are perfectly complied with. The complainant has 3 discharged the burden of proof squarely. These aspects of the matter have not been appreciated by the Trial court.” 3. On presentation of the complaint, the cognizance was taken and summons were issued to secure the presence of the accused person/ respondent. On 04.03.2015, the accused appeared before the Trial court. On 13.04.2015 the statement of the accused was recorded and the complainant was asked to produce his witnesses. In order to substantiate his claim, the complainant produced and examined three witnesses besides appearing himself as witness. The brief resume of the complainant’s evidence is as under: 1.Bashir Ahmad Bhat (Complainant); On examination by the counsel for the complainant he has stated that he knows the accused. The accused was working as on employee in the complainant’s shop. He has trusted the accused and has good relations with him. On September, 2014, after 15 days floods the accused asked the complainant for giving some money to him and he will repay the same within two to four months. The complainant somehow managed the money from here and there and a sum of Rs. 5,25,000/- was handed over to the accused in front of Tanveer Ahmad and Abdul Rashid Gojri. After 3 to4 months the complainant approached the accused for payment of the said amount. The accused gave a cheque of Rs.5,25,000/- to the complainant and the date of withdrawal of cheque was mentioned as 16.01.2015. When the complainant approached to the concerned bank for encashment of the cheque but same was not encashed. The cheque has been shown to the complainant in the open court which 4 the admitted to be the same as was given by the accused to him and the same is exhibited as EX-C1. Thereafter, the complainant also get the cheque memo from the bank, same has been shown to him in the open court and is exhibited as EX-C2. The complainant told the accused about the matter and the accused adopted delaying tactics. He also went to the house of the accused where the accused used abusive language to the complainant. On 23.01.2015, the complainant served legal notice to the accused through his counsel and same is on file, which has been shown to him and is marked as Mark “C3”. After 15 days of publication, the counsel for the complainant has submitted the same in the court. The legal notice was delivered through registered post and the photocopy of the said notice is on file and is marked as mark “C4”. In cross examination by the counsel for the accused he has deposed that he knows the accused since 4 to 5 years. He knows the accused because the accused was selling chicken. The accused worked as an employee in his shop. He did not remember how long the accused had worked as employee. There is not any attested document with regard to the employment of the accused with him. The complainant gave the accused Rs. 6,000/- as a salary. He did not remember from period the accused worked as employee. Last time on January, 2015 the accused was working there. He gave such amount t the accused in front of Tanveer Ahmad who is resident of Chanapora, Adil Bashir who is the sone of the complainant and Abdul Rashid Gojri of Wadipora who is shopkeeper at Chanapora. He did not remember on which date he has given the amount to the 5 accused. However, after September floods he has given the amount. Before that the accused has not taken any amount from the complainant. The accused has not borrowed any amount from the family members of the complainant. Then asked he has taken the amount from Adil Bashir as debt and did not repay the same to Adil Bashir. We have only once given debt to the accused. When the complainant has given the money to the accused and at the same time the accused has taken from the son of the complainant also. , We have trust with each other. The complainant has borrowed the money from others and gave it to the accused. He has taken the said amount as debt from Abdul Samad Dar, Ab. Rashid Gojri and Tanveer Ahmad. He did not remember how much and from whom he has taken debt. The complainant is economically well and has 60 Kanals of land. He has also four vehicles and four houses. He has capacity to hire an employee. The complainant has another case of cheque bouncing in Srinagar court. It is not true that he has shown a newspaper to the person or an Advocate with regard to the conviction of the accused. Besides this, there is one more case pending with regard to cheque bouncing and decree had been passed in favor of the complainant and conviction has been passed against the accused in which the complainant has given the debt to the accused five years prior to the institution of the present case. He was running his business on his own name and not with another name. Monthly income of the complainant is about Rs. 20,000/-. He did not remember on which day the accused gave a cheque. However, it was the month of January. The accused gave the cheque to the 6 complainant in front of Tanveer Ahmad and Adil Bashir. He called the said persons and told them that the accused is about to give him a cheque. The cheque was signed by the accused and also mentioned the account number by his own handwriting and the amount was not mentioned. The amount was written on the cheque by the complainant himself. Legal notice was handed over to the accused on 23.01.2015 by the counsel for the complainant. The accused was simply an employee with the complainant when he was working there. He has not knowledge that who has brought the accused to the complainant for employment and with regard to the salary of the accused there is no account. 2. Tanveer Ahmad Rah: On examination by the counsel for the complainant he has deposed that the knows the accused. The accused was selling chicken in the shop of the complainant. They were in good relations. After 15 to 20 days of September 2014, floods the accused has taken an amount of Rs. 5,25,000/- in the complainant house and the deponent was also present there. The complainant has counted the money and handed over to the accused as debt. The accused told the complainant that he will pay the debt amount in two to two and half months. After a long time, the complainant in presence of the deponent told the accused that he has dire need of money and asked him to pay the same. The deponent also told the accused to repay the amount to the complainant. After that, on January 2015 the accused gave a cheque to the complainant in which the amount of Rs. 5,25,000/- was written. The accused gave a cheque in presence 7 of the deponent. The same was shown to the witness which he admitted as the same cheque which the accused had given to the complainant. Thereafter the complainant approached the concerned bank for encashment and the cheque was not en-cashed. After 2/3 days the deponent went to the shop of the complainant and heard that the cheque has bounced. In cross examination by the counsel for the accused he has deposed that he knows the accused and the complainant for four years. They have good relations with each other. He cannot say that the relations are too good that they can give a blank cheque to each other. He did not remember the date and day on which the complainant gave the cash to the accused. It was the month of September. Besides the witness the other persons namely, Adil and Abdul Rashid Gojri were also present. It was early morning. The accused has not his own shop but was working in the shop of complainant. He was employee of the complainant and not son of the complainant. He has no knowledge about the salary of the accused. He was told by Bashir Ahmad that the accused was his employee. Besides Bashir Ahmad nobody told the witness that the accused is an employee of the complainant. He has no personal knowledge about employment of the accused and did not know him personally. Only one cheque was issued by Fayaz Ahmad and the date was 16.01.2015. The cheque was issued before 5 to 10 days of due date. The cheque was written before a day and not written in front of him. Neither he can tell that who wrote the cheque nor can say who signed the cheque in front of him. He has no personal 8 knowledge about the insurance policy nor can say that there was an insurance matter between the parties. In his presence no decision arrived at between the parties. When the complainant gave the money to the accused the notes were in thousands and consists of five bundles and Rs. 25,000/- was in hundred. He did not remember the number of the said cheque. He has not seen the accused to taking salary from the complainant as an employee. He went to the complainant’s shop by chance when the cheque was issued. Besides deponent only Abdul Rashid was present on spot. It is true that the accused was running a chicken shop and the material was provided by complainant. He can’t say in whose name the bill is passed. No further action was taken in presence of the deponent. 3. Hanif-u-din Nakishbandi: On examination by the counsel for the complainant he has deposed that at present he is posted at B. K. Pora as a Branch Manager. On January 2015 he was posted at the same branch. Account bearing No. 2014-5 is in his branch and the proprietor is Fayaz Ahmad Dar. The account is on the name of MIRs POULTRY. He issued the cheque book in the name of Fayaz Ahmad. A cheque amounting to Rs. 5,25,000/- dated 16.01.2015 was presented in his branch for payment and the same was not en-cashed due to insufficient balance and the direction was issued to stop payment. The signature of the issuing person on the cheque was present. On 16.01.2015 cheque was issued in the name of issuing person holding the said account with debt balance of Rs. 13,97,090.24/-. In this account the available balance was Rs. 2,900/- only. The memo placed on record is issued 9 by the deponent from the concerned branch with stamp. We issue memo in case when there is insufficient fund in the account or for other reasons also. The memo is not signed by him but is duly signed by second office. In cross examination by the counsel for the accused he has stated that the memo was not signed before him. He can’t say whether the memo was signed by second officer or not. Further action done in the memo was not done in his presence. The register on which receipt of memos are entered is not with him. As such as in the memo the action has not occurred in presence of him. He has not brought the register of memo with him. The cheque mentioned is a bearer cheque. The said cheque contains the amount which is above than bearer limitation that is why it could not pay to the third party. With cheque no payee slip was enclosed. About this cheque no signature of drawee is endorsed. By mistake he has deposed that signature on the cheque is of accused. He can’t say without looking at the record that is why he apologizes for that. There are about seven thousand accounts in his branch. He can’t know the details of all the accounts. He can tell by looking that record. He has no knowledge that the accused is a defaulter of any and as it never appears in his notice. According to account statement of the accused his account is running well. The accused’s loan is for trade poultry. He can’t say at the branch who offered cheque for payment. He can’t say with who issued the memo. 10 4. Faheem-u-din; On examination by the counsel for the complainant he has stated that in the year 2015 he was posted at B. K. Pora as P.O. The account bearing No. B.K.060302014-5 is account of his branch and is in the name of Fayaz Ahmad. The cheque amounting to Rs. 5,25,000/- dated 16.01.2015 Branch B. K. Pora was offered for payment. The said cheque was shown to him in the open court. At the time of issuing the memo he has checked the signature of the accused on the cheque and is exhibited as EX-C1 1.06.2015. The memo was shown to him in the court which is true and correct and bears his signature and same is exhibited as CZ-C2 11.06.2015. Insufficient fund was written on the memo. Rs. 2,900/- was in the account of the accused. The memo was issued because of insufficient amount in the account. He has issued the memo in respect of the cheque of the same account. In cross examination by the counsel for the accused the witness has deposed that he has seen the accused in the bank and not knows him personally. He can’t orally say the name, parentage and residence of the accused. The account about he has discussed is a business account and is CC Account. The Bank issues the CC account to whom who deals with business of any kind and not issued to whom who works as an employee in the said business. It is the fact that Fayaz Ahmad is running a business that is why he is holding CC Account. He has no knowledge about the number of CC account at the time when he was posted at B. K. Pora Bank. He can’t say on which account and whose signature is but on duty he can identify 11 the signature on cheque. The accused has not signed the cheque in front of him. Person from the court along with summon approached to him and he make his presence today in the court. The mark of insufficient is marked on the cheque when the cheque is presented for clearance. When the cheque is offered by the applicant himself this kind of act is not done. He can’t say that pay in slip is enclosed with the cheque or not when it is offered for payment. The pay in slip enclosed with the cheque is mandatory and was not enclosed with the present cheque. Memos are in pads without serial numbers. Memo record is not available in the bank. He has no knowledge that the memo record is in computer or not because his running the concerned table. He has not presented the memo record in the court. The complainant and his son have presented cheques before the deponent. They have submitted both the cheques at the same time. He did not remember which one cheque was presented by whom. He could not say that the accused was found a defaulter in the bank record. He presented the bank statement from Nowgam Bank today and not from B. K. Pora as all the branches are on line.” 4. On 13.04.2015, the incriminating evidence appearing in the complainant’s evidence was explained to the accused and on 20.07.2017, the complainant’s evidence was closed. In his statement recorded under section 342 Cr. P.C., the accused has stated that he issued four blank cheques to the complainant for the settlement of insurance claim. The accused has signed those cheques but did not mention the amount and the complainant has issued those cheques and filed the case for remaining cheque. The accused chose to lead evidence 12 in his defence to rebut the allegations leveled in the complaint, and produced and examined six witnesses. It would be appropriate to reproduce the said evidence hereunder: 1.Farooq Ahmad Bhat: On examination by the counsel for the accused he has stated that he knows the accused and the complainant. The accused was working as a tenant in the shop of the complainant. The accused was selling chicken and has his own business. The case which is pending in the court, he has decided the issue before a day. The accused’s shop was damaged in the flood and the accused’s shop was insured. Then there erupted differences between the complainant and the accused over the amount of insurance and share of insurance amount. The complainant said that his share is 40% while the accused was saying that his share is 12%. Thus, the issue took the form of fight. He has decided the issued between the parties with the help of people and decided that the share of the petitioner will be 25% (Rs. 1,80,000/-). This percentage was fixed upon the money which is likely to be paid by the Insurance Company. We made three decisions on this issue. This decision was taken at Nowgam and at police station too. In these decisions 25% was fixed. The accused gave a cheque of Rs. 1,80,000/- to the witness. The decision was regarding the money that was to be received from the Insurance Company. In cross examination by the counsel for the complainant he has stated that the decision between the parties taken after the 13 floods in 2014. The second time decision was taken in the 10th month; however, its date is not insurance work or not. At that time all are became the agents. The accused’s shop was damaged at Kanipora. According to the deponent it was bribe money. Bribe is given for wrong work. He doesn’t know whether bribe was given for wrong work. He has not knowledge about loss and the cheque. 2. Abdul Kareem Bhat: On examination by the counsel for the accused he has stated that he knows the parties. The accused had rented a shop of complainant. It is true that the shop was on rent. The accused was not a salesman of complainant and the later is also aware of this. He made a decision only in relation to shop. The decision was that complainant will not ask the accused to leave the shop, but the complainant will not ask the accused to leave, the shop, but the accused was saying that then where will he go? There was no talk on cash transaction and no one says about transactions. The complainant never said in presence of the deponent that he had given cash to the accused. There was no talk of transaction and no talk of cash. Again, the deponent decided but did not get any result then he said they may take third decision themselves and the accused left the shop. In his presence the complainant did not mention that, whether the accused has borrowed cash from his son. In cross examination he has stated that he works as an orderly in civil secretariat. He doesn’t remember how much the 14 accused paid for the shop and when he got this shop for rent? He does not know whose shops are on the right and whose shops are on the left side. The accused is my neighbor’s son. He knows that the accused used to work in poultry. A year after the floods, he along with accused and two other people went to decide a matter but he does not know their names. He does not know how old the accused is and he borrow money from anyone. He does not know whether the second meeting took place or not and where. 3.Naveed Farooq: On examination by the counsel for the accused he has deposed that he knows the parties i.e. accused and complainant. The accused runs shop of complainant on rent and he sells chicken there. The case between the complainant and the accused was filed in the court, he has decided this twice about insurance. Once the complainant has called the accused to police station Nowgam and he along with accused went to police station. S.I. Mohd Iqbal was present there and a decision was taken about the insurance claim only. However, there was no talk of transaction there. It was proposed that 10% out of insurance claim will be given to the complainant as the complainant’s son was pursuing the insurance claim, but the complainant did not agreed and the complainant left the case. The complainant was called second time at Sanatnagar in Treat Restaurant so that the matter can be resolved amicably but no result. Nothing emerged in the meeting which will make it clear that there was a cash transaction. The complainant kept saying that it cost a lot to get an insurance 15 claim. It was reiterated in both the meetings that blank cheques were issued Fayas Ahmad to complainant in connection with insurance claim. He has not knowledge how many cheques, the accused gave to complainant, four or five. In cross examination by the counsel for the complainant he has stated that he does not know how much the accused paid rent for the shop. He does not know how long the shop was on rent. He does not know whose shop is on right and whose shop on left side. He had to go the accused’s shop sometime. However, he usually went to godown. Accused lives in Kanipora while the deponent live in Nowgam. He does not remember the date when the meeting was held at the police station. The witness, accused ad one person from Kanipora and two persons from Nowgam were present in the meeting. The meeting took place after 2014 floods. The meeting concluded orally but was not written. The complainant had lodge a complaint against the accused but he denied and said that he has just lodged the report on phone. He does not remember the date and time of second meeting. The second meeting was held after 10 of 14 days of the first meeting. However, he knows the petitioner because of the meeting. He heard the name of the son of petitioner on the same day. Before the meeting, the deponent did not know that the accused had given the cheques to the complainant. He doesn’t know whether the complainant works with insurance or not. No cheque was issued in his presence but was issued earlier. The godown was damaged. The insurance claim was for Rs. 6.00 lacs and the 16 second claim was stopped by the complainant. He does not accompany the accused always. He doesn’t know from where the accused obtained loan and what he does? However, the accused works as poultry. Farooq Ahmad is not a witness in this case but he has not given any testimony in the second meeting. Showkat Ahmad and Naveed Farooq i.e. the witness and a person from Kanipora whose names was not known by the witness. 4. Showkat Ahmad Bhat: On examination by the counsel for the accused he has stated that he knows the parties. The accused is a chicken seller. The shop was owned by complainant and the accused was a tenant there and was doing private business and he had a salesman too. The accused was not a servant i.e. salesman of complainant. A cheque case was between the accused and complainant and a case was registered with regard to cheque in police station Nowgam. The petitioner met Inspector Iqbal from outside i.e. from outside police station, then the same Inspector called both the parties outside police station near Railway Nowgam, Naveed Ahmad, Fayaz Ahmad, Showkat Ahmad and the complainant was there. The Inspector said that the accused had given four cheques to the complainant relating to flood linked insurance and the complainant accepted it. He tried to solve the problem. The accused said that he will give 10% to 15% to complainant but the complainant did not agree and asked for 32%. Hence no decision was arrived at and everyone left the spot. The complainant said that he will file a case before the court. There is no mention in 17 front of witness that the complainant or his sone has given any cash to the accused. In cross examination by the counsel for the complainant he has stated that he went to the accused’s shop once or twice. No one side there is a dairy shop and he doesn’t know whose shop is on other side. He doesn’t know about the rent and whether rent agreement was done or not. The complaint which was lodged by complainant was not written. The conversation took place outside police station near Railway station and was after 2014 floods. He doesn’t remember the month however, a month and half after the floods. Only Inspector Iqbal was from police and no other police personnel was present. The complainant had a shop which is on rent. The complainant did not work for insurance but his friend does. The flood caused damage to the paneling of house, chicken and chicken feed of the accused. He doesn’t know whether the insurance claim was received or not. The percentage that the accused wa giving to complainant was a bribe because at that time everyone was paying bribe to get their claims. The accused has issued four blank cheques to the complainant. The account number of accused was at Kanipora. He keeps coming to the deponent and asks about transaction because the accused was illiterate. The accused has given a lot of money to many persons as debt and the deponent has also obtained from him. 18 5. Aijaz Ahmad Thokar: On examination by the counsel for the accused he has stated that he knows the parties. Fayaz Ahmad works for poultry. Fayz Ahmad’s shop was at Chanapora and this is the shop of the complainant. However, this shop was rented. He also worked at this shop. He was an employee of Fayaz Ahmad and he also paid salary to the deponent. Fayaz Ahmad used to run his business on rented shop. The fact is that the whole issue was pertaining to insurance. In the yar 2014 there was flood. The dispute is with regard to money which the accused was likely to get from insurance. Bashir Ahmad told the accused that he would make an insurance. Bashir Ahmad told the accused that he would make an insurance case for the accused and it was decided that complainant will get 12% per lac out of that money. But the complainant started asking the accused to give 50% and the accused refused for paying the same. SHO Nowgam had decided that the accused would pay 12% from the insurance money but the complainant did not accept this decision. In this decision besides SHO there were two other police persons and the witness. And another decision took place at residential house near Nowgam Goal was about the percentage. However, the petitioner was adamant on 50%, this was the dispute between them. There was no cash transaction between the parties in presence of witness. However, the issue was only on insurance. In cross examination by the counsel for the complainant the witness has deposed that he was working with the accused 19 and was selling chickens. He comes in court at the request of accused. Bashir Ahmad is a shopkeeper. He doesn’t know whether Bashir Ahmad works for insurance or not. However, the complainant had said that he will bring out the insurance money to accused. The house had insurance of Rs. 5.00 lacs. He doesn’t know whether Fayaz Ahmad got the insurance money or not. Fayaz Ahmad had no knowledge about insurance. He neither remember the date and time on which the decision took place however, after floods. He did not know the name of SHO. Fayaz Ahmad has filed an application before the SHO and two other police persons were present and he doesn’t know their names. He doesn’t know whether any written statement was made or not. The accused had issued a cheque and date was not mentioned. The cheque was not signed in front of the deponent. Accused has given blank cheque. 6.Mohd Munawar Rather: On examination by the counsel for the accused he has stated that he knows the parties. The accused is chicken seller. The accused runs his shop of chicken at Chanapora and the shop is owned by complainant and is on rent to accused. He has not knowledge about the cheque. However, he has heard the parties talking on phone, which was about 10% to 12%. The decision took place in presence of the deponent, accused, son of complainant and some people at a tea shop near Barzulla Hospital. The same thing which came to light there was that there was a transaction between the accused and the complainant on the issue of 20 percentage. And in the end, it was decided that the accused had to pay a percentage of Rs. 1.80 lacs as insurance money and also heard that the remaining Rs. 80,000/- was also given to complainant. However, there was no mention of cash transaction but only insurance percentage. In cross examination by the counsel for the complainant he has stated that he doesn’t remember the date on which the decision took place at the tea shop. The shop has no name but was a tin shed hotel and doesn’t know the name of owner of hotel. The accused is a neighbor. He doesn’t stay with the accused for 24 hours. However, it is known that the accused is chicken seller. He doesn’t know much about the complainant but knows that the complainant is a shopkeeper and that is his only job. He heard the conversation on telephone after floods. But not remember the date. The accused didn’t give a cheque in his presence otherwise he would have knowledge about the cheque. The shop was insured. However, the poultry form had insurance. He doesn’t remember the date of floods but occurred in September. The accused, son of the complainant, witness and other people whom the deponent doesn’t know were present in the decision. 5. Learned counsel for appellant has stated that the Trial Court has not appreciated the evidence produced by him in its right perspective; even the Trial Court laid much emphasis on mere discrepancies while overlooking the incriminating evidence both oral as well as documentary, which was sufficient to allow his complaint. It is being 21 stated that the Trial Court has discarded the entire evidence of the complainant/appellant and that impugned judgment of acquittal is passed in perfunctory manner without appreciating seriousness of offence committed by respondent/accused. It is being also stated that requirements of proof Under Section 138 of the Act have been fulfilled by the appellant before the trial court in as much as the issue of cheque, presentation of the same with the bank and the Memo of dishonor of the cheque by the bank have been place on record and proved beyond any doubt. This being so the requirements and burden of proof placed on the complainant by Section 138 of the Act has been discharged by the complainant. There means no way open before the trial court to acquit the accused on this ground alone the impugned judgment/order is therefore against the law, facts and the circumstances governing the case. He also states that respondent/ accused has been examined twice before the trial court Under Section-242 and 342 Cr.P.C. in both the statements the respondent has admitted that he has issued the cheque in favour of the appellant which was not honored by the bank on the grounds of shortage of funda available at the credit of the respondent, there is no justification whatever available on record to discredit these admissions and to believe a fabricated defence story as against the said admission. It is also stated by learned counsel for appellant that after having issued a cheque by respondent / accused in favour of the appellant. It is not available to the respondent to fabricate/concocted a story in defence which is not tenable issuing of a cheque for payment of an amount to the appellant is in itself a sufficient proof that he owed money to the complainant which he wanted to pay through the medium 22 of the cheque. This is the essence of Section-138 of the Act. After issuing a cheque no defence to the effect that the drawer of the cheque was not under obligation to draw the same is not tenable in the eyes of law especially under Section 138 of the Act. Such defence is not available to the respondent/accused. Law is laid down on the subject and the same will be demonstrated at the time of arguments of the case. He also avers that that the evidence produced by the appellant/complainant has not been appreciated in its right perspective which has caused great prejudice to the appellant/ complainant. The impugned Judgment/order is bad in law, contrary to the legal norms, contrary to evidence on record. It is being also stated that the cheque was issued on 16.01.2015 favoring the complainant, which was presented on the same date before the bank of encashment. Memo for insufficiency of funds was issued on the same day. Notice was issued through Advocate on 23.01.2015 within statutory period. The complaint was lodged on 19.02.2015 within the statutory period and in this way requirement under Section 138 of the Act has been perfectly complied with. 6. The core issue that arises for consideration in this case, is whether while recording judgment of acquittal, the complainant’s case and evidence has been properly appreciated in its right and proper perspective. The Trial Court has recorded entire evidence in its breadth and length in impugned judgment as examined herein above as well. The Trial court, as is apparent from impugned judgment, has, after taking into consideration entire evidence adduced by complainant/appellant, come to conclusion that evidence on the record produced by the 23 complainant/appellant is not sufficient to convince the court to hold that the accused/respondent has taken any debt from the complainant/appellant and in order to liquidate that debt the accused/ respondent has issued cheque which remained unpaid due to insufficient funds. The Trial court has thus held that the complainant has failed to prove the charge and dismissed the complaint. 7. The Trial Court discussed the provisions of Section 138 of the Act, which provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. It is, however, provided in Proviso to Section 138 that nothing contained in Section 138 shall apply unless the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier and provisions of Section 138 shall not also apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of 24 the receipt of information by him from the bank regarding the return of the cheque as unpaid; and that nothing contained in Section 138 shall apply unless the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 8. The Trial Court found that it had been assertion of complainant/ appellant that accused/respondent owed him an amount of Rs.5,25,000/- as respondent had taken the said amount as loan from appellant and that in order to liquidate the said debt amount, the respondent had issued a cheque on 16.01.2015 but the said cheque was dishonoured by the bank on the ground of insufficient funds. In the complaint, it is alleged by appellant that respondent had received the amount in presence of witnesses. In his statement, the appellant has stated before the Trial Court that he had given the money to respondent in presence of Tanveer Ahmad, Adil Bashir and Abdul Rashid Gojri, but appellant produced only Tanveer Ahmad as witness before the Trial Court to reinforce his claim that he had paid Rs.5,25,000/- to respondent. In his cross examination, the appellant has stated that he did not remember the date on which he had given the money to the respondent. It has rightly been said by the Trial Court that since the appellant had advanced an amount of more than rupees five lakhs to the accused, the appellant ought to have the knowledge of accurate date, time and place of delivery of money. Even the complainant’s witness, Tanveer, stated before the Trial Court that he did not remember the date and day on which the appellant had given the cash to respondent. The 25 other two witnesses, Abdul Rashid Gojri and Adil Bashir, were not produced by the appellant before the Trial Court. Thus, there was not enough evidence before the Trial Court to believe that appellant had advanced any money to the respondent as debt. 9. In the complaint it is also alleged by the appellant that that respondent was his employee and due to employer-employee relation, the appellant had given Rs.5,25,000/- to the respondent as debt. In his statement, the appellant before the Trial Court stated that respondent worked as his employee in his shop and that he did not remember for how long respondent had worked as his employee. There is no proof with regard to employment of the respondent. Contrary to this, the witness produced by appellant before the Trial Court, namely, Tanveer Ahmad, stated that he was told by appellant that respondent was his employee and he has no personal knowledge about employment of respondent, neither he knows him personally. One of the appellant’s witness, namely, Faheem-u-din (Bank P.O.) stated before the Trial Court that the account was a CC account and was a business account and that the bank issue CC account to whom, who deals with business of any kind and did not issue to the person who works as an employee in the business and in fact Faayz Ahmad was running a business that is why he was holding CC account. The statement of two witnesses, who were bank employees, was based on record and affirms the fact that respondent, Fayaz Ahmad, was running his own business on relevant date. The statement of these witnesses has debilitated the claim of appellant that respondent was his employee on the relevant point of time. Demand notice issued by the appellant does not mention about 26 any debt having been taken by the respondent from appellant inasmuch as the demand notice simply asks the respondent to make the payment of cheque amount to the appellant within 15 days. The Trial Court has found, deliberated upon and shown unambiguously the weaknesses in the case set up by appellant in his complaint and evidence adduced by him. In such circumstances it cannot be heard saying from the appellant that the Trial Court has not deliberated upon and discussed all aspects of the matter. 10. The Supreme Court’s judgement in Dattatraya vs. Sharanappa, 2024 SCC OnLine SC 1899, reinforces that merely holding a signed cheque does not automatically constitute a legally enforceable debt. The complainant must provide clear and consistent evidence to substantiate his claim. 11. The well settled law is that the function of the Court in a criminal trial is to find out whether a person arraigned before it as accused is guilty of offence with which he is charged. For this purpose, the Court scans the material on record to find out whether there is any credible, reliable and trustworthy evidence on the basis of which it is possible to convict accused and to hold that he is guilty of offence with which he is charged. The burden to prove ingredients of the offence is always on the complainant and it never shifts to the accused. 12. Testing prosecution case on the touchstone of evidence of witnesses, as reproduced/discussed herein above, impugned judgment is based on the law, reason and the logic. It does not call for any interference. 13. The argument of learned counsel for accused that there are discrepancies in the statements of witnesses is an argument when tested 27 on the touchstone of the instant case, shows that complainant/appellant has failed in discharging its burden to prove the contents of his complaint. There is, thus, no merit in this appeal. It entails dismissal and as a consequence of which the same is dismissed and the judgment of acquittal recorded by the trial court is maintained and upheld. 14. Copy of this judgement be sent down along with the record, if any, received. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 15.07.2025 “Imtiyaz” Whether the order is reportable: Yes/No Imtiyaz Ul Gani I attest to the accuracy and authenticity of this document 17.07.2025 10:15