JUDGMENT 1. This criminal appeal has been filed by the complainant against the order dated 13.12.2004, passed by the Chief Judicial Magistrate, Neemuch, in Criminal Case No.813/02, whereby complaint filed by the appellant under section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’) has been dismissed. 2. Brief facts of the case are that the appellant is having his foundry in the name and style of “Oswal Foundry” at Neemuch. He is doing the work of fabrication and manufacturing of tractor trolley. The respondent was knowing to him and there was number of transaction between them. Last transaction took place between them was on 20th July, 1996. He gave Rs.30,000/- as loan to the respondent. The respondent has guaranteed to the said loan and issued two post dated cheques No.000558 and 000559 of Rs.15,000/- each of Central Bank of India, Bhagwanpura Branch. The said cheque was presented by the appellant encashment through his bank, State Bank of India, Kanawati Branch on 6.12.1996. The said cheque was returned unpaid by a memo stating therein that account of the respondent at Central Bank of India was closed and boththe cheques were not encashed. The appellant thereafter, issued notice by registered post under the provisions of section 138 of N.I. Act on 8.12.1996. 3. The respondent in spite of receipt of notice had failed to make the payment and, therefore, he filed a private complaint under section 138 of the N.I. Act on 8.1.1997. The respondent denied the said transaction and had taken a defence that he has been falsely implicated by the present appellant whereas, there was old transaction between them and in pursuance to the said transaction,. he has issued two cheques of Central Bank of India, in respect of the transaction, which was held in the year 1985. It is further alleged that in the year 1996, no transaction was taken between them and on 20th July, 1996, his wife was admitted at nursing home and she was operated and was hospitalized till 3.8.1997 and prayed for dismissal of the complaint. 4. Learned trial Court on the basis of admission made by appellant RajmalJain (PW1) dismissed the complaint. 5. 4. Learned trial Court on the basis of admission made by appellant RajmalJain (PW1) dismissed the complaint. 5. Learned counsel for the appellant has drawn my attention tothe complaint lodged byhim on 8.1.1997 and submitted that as per averment made in the complaint, he gave a sum of Rs.30,000/- as loan to the respondent on 20th July, 1996 and on the same day he gave two post dated cheques of Rs.15,000/- each, the trial Court committed an error in dismissing his complaint. 6. Complainant Rajmal Jain (PW1) in his cross-examination very categorically admitted that a sum of Rs.30,000/- was paid to the respondent on 20th July, 1996 and on the same day as a guarantee two cheques were issued by the respondent. This witness in para 3 had stated that two post dated cheques were issued on 4.8.1996. He also admitted that prior to 20th July, 1996, no transaction took place between him and the respondent. He also admitted that on 4.8.1996, no amount was given to the respondent. In para 4, this witness has deposed about the fact of given loan on 20th July, 1996. He disclosed this fact to his counsel and the same has been stted in Ex.P-5 (notice). This witness further in para 4 of his cross-examination has admitted that he had taken a loan in the year 1984 and due to non-payment of the said, a case was filed for recovering the said amount somewhere in 1991-1992 by the Bank and in the year 1998 a decree of Rs.67,000/- was passed against him. In para 8 he has admitted that if any amount was paid by the respondent in respect of the transaction in question, the same has been noted by him in his diary. This witness in para 9 has further admitted that on 20th July, 1996, when the amount was paid to the respondent, the said entry was made in his account books, but he has destroyed the account books. No reason has been given as to why he has destroyed all the books of transaction in question. Further in para 6, he has specifically admitted that in cheque Exhibits P-1 and P-2, no date has been written by the respondent. It is he who put a seal on 4.8.1996. No reason has been given as to why he has destroyed all the books of transaction in question. Further in para 6, he has specifically admitted that in cheque Exhibits P-1 and P-2, no date has been written by the respondent. It is he who put a seal on 4.8.1996. He also admitted in para 5 of his cross-examination that respondent used to take trolley from his factory and as a security, he used to give blank cheque to him. He also admitted that in respect of a transaction of trolley only Rs.5,000/- was balance against the respondent. 7. Learned trial Court considered the admissions made by the appellant in his cross-examination in paras 13 to 18 and came to the conclusion that transaction in respect of the cheque of Central Bank of India was issued by the respondent is in respect of 1985. No transaction was taken place between them in the year 1996 nor on 20th July, 1996, any transaction was taken place. On due consideration of the statement of PW1 and reasoning assigned by the trial Court, this Court is of the view that learned trial Court has not committed any legal error in dismissing the complaint. 8. From a reading of section 138 of the N.I. Act, it is very clear that in order to attract the provisions thereof a cheque, which is dishonoured will have to be drawn by a person on an account maintained by him 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 in other liability. It is only such a cheque which is dishonoured which would attract the provisions of section 138 of the above Act against the drawer of the cheque. 9. On due consideration of the fact that no transaction has taken place in 1996 or 20th July, 1996, the learned trial Court has not committed any legal error in dismissing the complaint. The appeal filed by the appellant has no merit and is accordingly, dismissed.