Judgment S.L.Kochar, J. ( 1. ) THIS appeal has been preferred by the appellant, after obtaining leave from this Court as per provision U/S. 378(4) of the Cr.P.C against the impugned judgment of acquittal of the respondent passed by learned JMF.C, Indore in Criminal Case No. 168/1993 dated 30/11 /1995. ( 2. ) According to the appellant he advanced loan of Rs. 40,000/- to the respondent on 14/7/1991 and respondent executed receipt (Ex.P.4-C). This amount was to be returned according to the contents of the receipt on 14/9/1991 by the respondent but he failed to repay the amount. Respondent issued cheque of Syndicate Bank, Branch Nanda Nagar, Indore dated 2/9/1992 in favour of the appellant of Rs.40,000/- vide Ex.P.1-C. This cheque was deposited on the same day and returned by the bank with letter (Ex. P. 2-C) on 3/9/1992 because there was no sufficient fund. The appellant issued notice (Ex.P.5) on 4/9/1992 to the respondent which was received by turn. Ex.P.6 is the registered acknowledgment due along with postal receipt. Notice was also sent by U.P.C. Respondent sent reply (Ex.P.7-C) dated 21/9/1992 which was received by appellant. In this reply, respondent accepted raising of loan but denied any agreement or settlement to pay any interest. He also stated that he t gave cheque of without date to the appellant at the time of receipt of Rs.40,000/- and also told him that the moment he will get the money he would make the payment and receive back the cheque. He also stated in the notice that appellant inspite of promise, submitted the cheque for encashment in the bank because of which same was returned back to him without payment. The respondent accepted the liability of Rs. 40,000/- and expressed his hope to make the payment within 3-4 months as soon as he would receive the amount as he was doing the business as contractor. It is also contended by the respondent in the notice that at the time of handing over the cheque, he informed the appellant that there was no sufficient amount in his account. After receipt of this reply, appellant filed the complaint within stipulated period before the Court below on 16/10/1992 and examined himself as per provision U/S.200 of the Cr.P.C. on 11/11/1992. The complaint was registered by order dated 10/2/1993 and respondent appeared before the trial Court on 2/4/1993. After receipt of this reply, appellant filed the complaint within stipulated period before the Court below on 16/10/1992 and examined himself as per provision U/S.200 of the Cr.P.C. on 11/11/1992. The complaint was registered by order dated 10/2/1993 and respondent appeared before the trial Court on 2/4/1993. On 6/8/1993 particulars of the charges were read over to the respondent and he denied the same, thereafter appellant examined himself on 4/11/1995 and also cross examined. His witness Parthsarathy, Manager, Syndicate Bank, Nanda Najjar was also examined and cross examined on 30/6/1995. ( 3. ) Respondent did not examine himself or any witness in bis favour. Accused statement was recorded by the trial Court on 29/11/1995 and his case was that he handed over the cheque without mentioning any date and he was ready to pay the amount. The learned trial Court, after hearing both the parties, dismissed the complaint. Hence mis appeal filed by the appellant/complainant. ( 4. ) None for the respondent. Though this appeal is listed in weekly and daily cause list commencing from 25/2/2008, but none appeared on behalf of the respondent on any date. Prior to this, on 5/2/2008 counsel for parties appeared and prayed for taking the case on 6/2/2008. On 6/2/2008 counsel for appellant was present but counsel for respondent was not present, therefore, it was fixed on 7/2/2008. On 7/2/2008 also counsel for appellant was present and none appeared for respondent. On 8/2/2008 none appeared for the parties, therefore, this appeal was adjourned with a direction for listing in week commencing from 18/2/2008. On 18/2/2008 on prayer it was listed on 21/2/2008. On 21/2/2008 counsel for appellant was present, but none appeared for the respondent and appeal was adjourned for 22/2/2008. On this date also none appeared for the respondent though counsel for appellant was present. In view of the non-appearance of the respondent and his Advocate the appeal cannot be adjourned for indefinite period again and again, therefore, counsel for appellant is heard and record perused. ( 5. On this date also none appeared for the respondent though counsel for appellant was present. In view of the non-appearance of the respondent and his Advocate the appeal cannot be adjourned for indefinite period again and again, therefore, counsel for appellant is heard and record perused. ( 5. ) The learned counsel for the appellant has taken this Court through the entire record and documents and contended that learned trial Court has given finding without any evidence that cheque (Ex.P.l-C) was given by the respondent on the date of taking of Rs.40,000/- and executed receipt (Ex.P.4-C) dated 14/7/1991 and appellant mentioned the date by seal of 2/9/1992 on the cheque and the same was produced before bank for encashment after six months of its issuance, therefore, no case is made out against the respondent. Learned counsel has submitted that as per provision U/S. 118(b) of the Negotiable Instrument Act, 1881, it is crystal clear that every Negotiable Instrument bearing a date was made or drawn on such date, therefore, date mentioned on the cheque 2/9/1992 would be date of issuance of the cheque and not 14/7/1991. Learned counsel has also placed reliance in support of his contention the judgment of Supreme Court passed in case of Jiwanlal Achariya Vs. Rameshwarlal Agarwalla [ AIR 1967 SC 1118 ]. ( 6. ) Having heard the learned counsel for appellant and after perusing the entire record, this Court is of the view that learned trial Court has committed error of law and fact in dismissing the complaint and acquitting the respondent. ( 7. ) There is no dispute between the parties that appellant advanced loan of Rs.40,000/- to respondent on 14/7/1991 and respondent issued receipt to this effect vide Ex.P.4-C. According to this receipt, money was to be returned on 14/9/1991 and this money was paid by cheque to the respondent. Appellant has specifically stated in his cross examination para three last line that he did not make payment of cash amount and in para four first line stated that respondent handed over the cheque of syndicate Bank to him. He denied the defence suggestion in para four that he received the cheque Ex.P.l-C on 14/7/1991 bearing no date and stated that cheque dated 2/9/ 1992 was received by him on 1/9/1992. He denied the defence suggestion in para four that he received the cheque Ex.P.l-C on 14/7/1991 bearing no date and stated that cheque dated 2/9/ 1992 was received by him on 1/9/1992. Learned trial Court in para 11 has considered against the appellant that he stated in para four of his statement that cheque dated 21 9/1992 was received by him on 1/9/1992 but in the complaint no date of receipt of cheque is mentioned. It is the trite law that contents of the complaint would not be treated as a substantive piece of evidence. Same can be used for contradiction and corroboration to its author/complainant as per provision U/Ss. 145 and 157 of the Evidence Act. Learned trial Court has failed to consider the fact that appellant was not confronted with the contents of the complaint and no opportunity was given to the appellant to explain this omission in the complaint, therefore, in the considered view of this Court, the learned trial Court could not have taken into consideration this omission against the appellant and this omission is also not material one and not amount to contradiction. Learned trial Court has also erred in holding mat appellant failed to give any explanation for receiving undated cheque and also failed to rebut this allegation. Appellant is not required to rebut the allegation levelled by the respondent accused. There is legal presumption in his favour about date mentioned on the cheque as per provision U/S. 118(b) which reads as under:- 118(b) as to datethat every negotiable instrument bearing a date was made or drawn on such date; ( 8. ) The learned trial Court has also failed to consider that respondent has admitted the receipt of Rs.40,000/- in his accused statement recorded U/S.313 of the Cr.P.C as well as in his reply of the notice Ex.P.7-C. Though respondent expressed his willingness to pay the amount to the appellant but neither he paid this amount during the course of trial nor after passing of impugned judgment. This shows that his bona fides were not clear. ( 9. ) The finding of the learned trial Court that undated cheque was given by the respondent to the appellant on 14/7/1991 and same was not produced before the concerned bank for encashment within six months is without any positive material on record. This shows that his bona fides were not clear. ( 9. ) The finding of the learned trial Court that undated cheque was given by the respondent to the appellant on 14/7/1991 and same was not produced before the concerned bank for encashment within six months is without any positive material on record. The case of the appellant was that cheque was bearing date 2/9/1992 and it was received by him on 1/9/1992 and this fact has not been controverted by the respondent by adducing any cogent and reliable evidence. He has not examined any witness and also not filed any documentary evidence. The finding of the learned trial Court on this count is based on conjuncture and surmises. ( 10. ) Consequently, in view of the foregoing discussion, this appeal is allowed. The impugned judgment of acquittal of the respondent is set aside and respondent is found guilty of commission of offence U/S. 138 of the Negotiable Instrument Act and he is sentenced to imprisonment for six months. He shall also pay compensation of Rs. 50,000/- (rupees fifty thousand) to the appellant. The respondent is directed to surrender himself before the trial Court on 28/04/2008 failing which trial Court is directed to take suitable legal action against the respondent, under intimation to this Court. Office is directed to send copy of this judgment along with the record to the trial Court for its compliance. Appeal allowed.