JUDGMENT Kanwaljit Singh Ahluwalia, J 1. M/s Jagdamba Steel Industries, Karnal, through its partner Diwan Chand and General Power of Attorney of the other partners, instituted a complaint in the Court of Judicial Magistrate (1st Class), Karnal for prosecuting M/s Sher Chand Kapoor & Sons, through its proprietor/ partner for having committed an offence under Section 138 of Negotiable Instruments Act and section 420 IPC. 2. The complaint was instituted on 3rd October, 1996. The trial Court had acquitted the accused on 25th January, 2000. The judgment of acquittal is under challenge in the present appeal. 3. The appellant complainant, in the complaint instituted, averred that he is engaged in supplying GP sheets to the accused. On 4th August, 1995, vide Bill No.75, GP sheets worth Rs.26,875/-were supplied by the complainant to the accused. The due amount was paid by the accused respondent. Again on 22nd August, 1995, vide Bill No. 91, GP sheets were purchased by the accused and the amount of Bill was Rs.54,775/-. Thereafter, vide Bill No. 112 on 16th September, 1995, accused had purchased GP sheets amounting to Rs.27,356/-. It is admitted case of the complainant that Rs.25,000/-, vide demand draft No.600121 dated 16th September, 1995, were paid by the accused for discharge of the liability. The accused had also paid three demand drafts worth Rs.5000/-each on 19th May, 1995, 7th May, 1996 and 4th June, 1996 respectively. 4. In the complaint, it was pleaded that cheque bearing No.918935, drawn for Rs.5000/-on 8th April, 1996 was returned by the Bank with remarks that it exceeds arrangement. The cheque was returned on 18th April, 1996. The same was again presented but the Banker on 28th August, 1996 again returned the cheque with remarks ‘exceeds arrangement’. It was contended in the complaint that non-payment of the amount of Rs.5000/-, for which the cheque was drawn on 8th April, 1996, makes the accused liable for offence under Section 138 of Negotiable Instruments Act and section 420 IPC. 5. The complainant appeared as PW-1 and on all material aspects, reiterated the version given in the complaint. An officer of Punjab National Bank, Tehsil Camp, Panipat, Anil Kohli appeared as PW-2. He proved the record of Bank statement of the accused. Statement was exhibited as Ex.P-13. Two memos of return of cheque were exhibited as Ex.P-6 and P-8. Only two witnesses were examined by the complainant. 6. An officer of Punjab National Bank, Tehsil Camp, Panipat, Anil Kohli appeared as PW-2. He proved the record of Bank statement of the accused. Statement was exhibited as Ex.P-13. Two memos of return of cheque were exhibited as Ex.P-6 and P-8. Only two witnesses were examined by the complainant. 6. The accused was examined under Section 313 Cr.P.C. He took a definite stand that in lieu of the payment of cheque, two drafts of Rs.5000/-were handed over to the complainant after receipt of the mandatory notice. 7. In consonance with the statement made by the accused under Section 313 Cr.P.C., an argument was raised that after receipt of legal notice Ex.P-10, accused had made payment of Rs.5000/-on 7th May, 1996 and the payment was made by way of draft of Rs.5000/-. The draft was got prepared on 7th May, 1996. The trial Judge held as under: “9. After considering the contentions of learned counsel for the parties, I am of the view that it was for the complainant to have adduce evidence to the effect that draft of Rs.5000/-received on 7.5.1996 was not for payment of dishonoured cheque dated 8.4.1996. Rather presumption with regard to payment in continuity arises unless some other act is established on part of complainant by adducing evidence to the effect that the amount of Rs.5000/-received through draft on 7.5.1996 was not in consequence to the cheque on 18.4.1996. Receipt of this draft is not disputed by complainant who has admitted this draft in his complaint.” 8. The contention of the complainant that even if draft of Rs.5000/-is adjusted qua the cheque, yet accused had to make other payments, was not accepted, as it was held that by handing over the draft after receipt of the legal notice, the amount of cheque was duly accounted for. 9. The trial Court has recorded finding of fact. It is not disputed that after the cheque was dishonoured and legal notice was issued, the accused had prepared a draft of the same amount and had handed over the same to the complainant. Oral assertion made by the counsel for the complainant that the draft was accepted not in lieu of cheque but towards the payment, which was already outstanding, cannot be accepted. The explanation given by the complainant is neither probable nor natural and convincing. Oral assertion made by the counsel for the complainant that the draft was accepted not in lieu of cheque but towards the payment, which was already outstanding, cannot be accepted. The explanation given by the complainant is neither probable nor natural and convincing. Therefore, I do not find any reason to disturb the finding of fact recorded by the trial Court. Hence, the present appeal is dismissed.