JUDGMENT & ORDER : Mr. Vijay Bishnoi, J. 1. This criminal appeal has been preferred on behalf of the appellant being aggrieved with the judgment dated 6.8.2014 passed by the Distt. & Sessions Judge, Jaisalmer (for short ‘the appellate court’) in Criminal Appeal No.18/2013, whereby the appellate court has accepted the appeal filed by the respondent No.2 and set aside the judgment dated 8.5.2013 passed by the Judicial Magistrate, Jaisalmer (for short ‘the trial court’) in Criminal Regular Case No.16/2011. 2. The trial court vide judgment dated 8.5.2013 has convicted the respondent No.2 for the offence punishable under Section 138 of the N.I. Act and sentenced him for one year’s simple imprisonment and to pay compensation to the tune of Rs.60,000/- to the appellant. 3. Brief facts of the case are that the appellant has filed a complaint against the respondent No.2 under Section 138 of the N.I. Act before the trial court on 1.9.2010 while alleging that he has advanced a loan of Rs.40,000/- to the respondent No.2 for his personal needs and the respondent No.2 has given him a cheque No.0201822 dated 5.6.2010 for repayment of the said loan. It is alleged that the above mentioned cheque was presented by the appellant in the concerned bank on 8.6.2010, however, the same was returned by the bank with a remark ‘insufficient fund’. It is further alleged that the appellant has informed the respondent No.2 about dishonour of the cheque given by him, then, the respondent No.2 asked him that he may present the cheque for realization on 23.7.2010 and on this, the appellant has again presented the said cheque in the concerned bank on 23.7.2010 but the same was again dishonoured and returned with the remark ‘insufficient fund’. It is alleged that the appellant has thereafter sent a registered notice to the respondent No.2 through his Advocate on 5.8.2010, however, despite receipt of the said notice, the respondent No.2 has not paid the cheque amount to him. 4. The trial court after recording the statement of the appellant under Section 200 Cr.P.C. took cognizance against the respondent No.2 for the offence punishable under Section 138 of the N.I. Act and framed charges for the aforesaid offence against him. The respondent No.2 has denied the charges levelled against him and claimed trial. 5. 4. The trial court after recording the statement of the appellant under Section 200 Cr.P.C. took cognizance against the respondent No.2 for the offence punishable under Section 138 of the N.I. Act and framed charges for the aforesaid offence against him. The respondent No.2 has denied the charges levelled against him and claimed trial. 5. During the course of trial, the appellant has filed an affidavit in support of the complaint and has got examined himself as PW-1. He has also got exhibited five documents. The statement of the respondent No.2 was recorded under Section 313 Cr.P.C. and two witnesses namely Mohan Singh (DW-1) and Chagan Lal (DW-2) have been examined in defence. Two documents were produced by the respondent No.2 in defence. 6. The trial court after hearing learned counsel for the parties and after taking into consideration the evidence available on record has held that the respondent No.2 borrowed amount of Rs.40,000/- from the appellant and has given him a cheque for repayment of the said loan, however, the said cheque was not realized when presented in the bank and despite receipt of notice the amount has not been paid by the respondent No.2. The trial court has held that the appellant has sufficiently proved that the cheque in question was given to him by the respondent No.2 in lieu of legally enforceable debt and the respondent No.2 has failed to repay the said debt. The trial court has therefore convicted the respondent No.2 for the offence punishable under Section 138 of the N.I. Act and sentenced him for one year’s simple imprisonment and to pay compensation to the tune of Rs.60,000/- to the appellant. 7. Being aggrieved with the judgment dated 8.5.2013, the respondent No.2 has preferred appeal before the appellate court and the appellate court vide impugned judgment dated 6.8.2014 has accepted the appeal preferred by the respondent No.2 and acquitted him from the offence punishable under Section 138 of the N.I. and set aside the judgment dated 8.5.2013 passed by the trial court. Being aggrieved with this, the appellant has preferred this appeal. 8. Learned counsel for the appellant has submitted that the appellate court has erred in setting aside the judgment dated 8.5.2013 passed by the trial court. Being aggrieved with this, the appellant has preferred this appeal. 8. Learned counsel for the appellant has submitted that the appellate court has erred in setting aside the judgment dated 8.5.2013 passed by the trial court. It is contended that the appellant has proved the charge for the offence punishable under Section 138 of the N.I. Act against the respondent No.2 by producing cogent and reliable evidence, however, the appellate court on the basis of surmises and conjectures has set aside the said judgment and disbelieved the evidence produced by the appellant. 9. It is argued that the respondent No.2 took amount of Rs.40,000/- from the appellant on 5.6.2010 and has given him the cheque in question on 8.6.2010 for realization of the said loan amount. The appellant has presented the said cheque in the concerned bank, however, the same was returned by the bank with a remark ‘insufficient fund’, then, the appellant has informed the respondent No.2 about the same and on asking has again presented the cheque in the concerned bank on 23.7.2010, but again the same was dishonoured. The appellant has thereafter sent a registered notice to the respondent No.2 and asked him to pay the loan amount within a period of 15 days, but, despite service of the said registered notice, the respondent No.2 has failed to repay the loan. It is contended that the trial court after taking into consideration the prosecution evidence as well as the defence evidence has rightly convicted the respondent No.2 for the offence punishable under Section 138 of the N.I. Act and has rightly directed him to pay compensation of Rs.60,000/- to the appellant. It is argued that the appellate court has not appreciated the evidence available on record in right perspective and has illegally held that the appellant has failed to prove that he has advanced a loan of Rs.40,000/- to the respondent No.2 and the respondent No.2 has given the cheque in question for the purpose of realization of the said loan amount. 10. Learned counsel for the appellant has therefore prayed that the impugned judgment dated 6.8.2014 passed by the appellate court be set aside and the judgment passed by the trial court dated 8.5.2013 be affirmed. 11. 10. Learned counsel for the appellant has therefore prayed that the impugned judgment dated 6.8.2014 passed by the appellate court be set aside and the judgment passed by the trial court dated 8.5.2013 be affirmed. 11. Per contra, learned Public Prosecutor as well as learned counsel for the respondent No.2 have supported the judgment passed by the appellate court and argued that the appellant has failed to prove the charge for the offence punishable under Section 138 of the N.I. Act against the respondent No.2 by producing cogent and reliable evidence and, therefore, the appellate court has not committed any illegality in accepting the appeal filed by the respondent No.2 and in setting aside the judgment dated 8.5.2013 passed by the trial court. 12. Heard learned counsel for the parties, perused the impugned judgment and carefully scrutinized the record. 13. The case of the appellant before the trial court was to the effect that he has advanced a loan of Rs.40,000/- to the respondent No.2. It is noticed that neither in the complaint nor in the statement before the court, the appellant has disclosed the date, on which, he has advanced amount of Rs.40,000/- to the respondent No.2. Though, he has produced some documents, diary etc. to prove that he has advanced loan of Rs.40,000/- to the respondent No.2, but in that diary, there is no mention of amount of Rs.40,000/- and the date on which any loan was given by him to the respondent. The appellant in his cross examination has admitted that the entry regarding the advancement of loan of Rs.40,000/- to the respondent No.2 is not figuring in the said diary. He has also admitted that except the said documentary evidence, there is no other account, in which, the entry regarding the advancement of Rs.40,000/- to the respondent No.2 is figured. 14. This Court has noticed that in support of the complaint, the statement of the appellant has been recorded before the trial court under Section 200 Cr.P.C. and in those statement, the appellant has stated that he has advanced amount of Rs.40,000/- to the respondent No.2 on 5.6.2002 he has given cheque No.0201822 dated 5.6.2002 to him and he presented the said cheque in the Rajasthan Bank, Jaisalmer on 8.6.2010. It is unbelievable that the cheque handed over to the appellant by the respondent No.2 on 5.6.2002 was presented in the bank after more than eight years i.e. on 8.6.2010. 15. Apart from this, the respondent No.2 has submitted his defence before the trial court while contending that he has purchased a indica car from the appellant in the year 2008 for a consideration of Rs.1,21,000/- and has paid amount of Rs.55,000/- in advance and it was agreed that he will pay the remaining due amount in instalments of Rs.5000/- per month. The further case of the respondent No.2 before the trial court was that he has failed to deposit the instalments of Rs.5000/- in seven to eight months, then, the appellant has called and asked him to pay the due amount and at that time, he along with Mohan Singh (DW-1) and Chagan Lal (DW-2) had approached the appellant and at that time, it was decided that the respondent No.2 will pay the remaining due amount in two instalments of Rs.20,000/- each to the appellant and for that he has handed over a blank cheque of Rs.40,000/- to him, but later on, the respondent No.2 has paid the due amount to the appellant in cash, however, on his demand, the blank cheque was not returned to him by the appellant. 16. Mohan Singh (DW-1) and Chagan Lal (DW-2) in their court statements have also stated that the respondent No.2 has paid the due amount of Rs.40,000/- to the appellant in two instalments of Rs.20,000/- each in their presence. The appellant (PW-1) in his cross examination has admitted about the transaction of purchase of indica car by the respondent No.2 from him and he has also admitted that the respondent No.2 has paid some rupees in advance. 17. The trial court has disbelieved the defence of the respondent No.2 but the appellate court has accepted the same and has held that in view of the clear admission of the appellant in his statement, the defence of the respondent No.2 is more reliable. 17. The trial court has disbelieved the defence of the respondent No.2 but the appellate court has accepted the same and has held that in view of the clear admission of the appellant in his statement, the defence of the respondent No.2 is more reliable. The appellate court has also observed that the appellant has failed to prove that he has advanced loan of Rs.40,000/- to the respondent No.2 because the appellant in his statement has taken contradictory stand and has stated that amount of Rs.55,000/- was due against the respondent No.2 and in lieu of that, he has handed over him the cheque in question for the amount of Rs.40,000/-. 18. After carefully scrutinizing the material available on record, this Court is of the opinion that the trial court has erred in convicting the respondent No.2 for the offence punishable under Section 138 of the N.I. Act as the appellant has failed to produce cogent and reliable evidence in support of his claim made in the complaint. The appellate court has rightly appreciated the evidence produced by the parties and has not committed any illegality in setting aside the judgment passed by the trial court and in acquitting the respondent No.2 for the offence punishable under Section 138 of the N.I. Act. Hence, this Court does not find any illegality in the impugned judgment passed by the appellate court. Resultantly, this appeal being bereft of force is hereby dismissed.