JUDGMENT : 1. By way of this application preferred under Section 378(iv) Cr.P.C., the applicant complainant seeks leave to file an appeal against the judgment dated 21.11.2016 passed by the learned Special Judge (SC/ST) Cases Court, Udaipur in Criminal Appeal No.06/2014 (CISN 12/2015) whereby, the appellate Court accepted the appeal of the accused Vijay Kumar (respondent no.2) and acquitted him from the charge under Section 138 of the Negotiable Instruments Act while setting aside the judgment of conviction dated 8.1.2014 passed by the learned Special Judicial Magistrate, Negotiable Instruments Act Cases No.1, Udaipur in Criminal Case No.981/2010. 2. Facts in brief are that the applicant complainant finance company lodged a complaint in the Court of learned Special Judicial Magistrate, NI Act Cases No.1, Udaipur against the respondent no.2 with the allegation that he had been advanced loan for purchasing a vehicle. With the said loan amount, the respondent no.2 purchased an Ashoka Leyland vehicle bearing registration no.RJ 27 G 9738. The accused handed over a cheque no.102090 dated 23.9.2008 for a sum of Rs.6,83,000/- to the applicant finance company for the full and final repayment of loan amount. The cheque upon being presented was dishonored with the remark of funds being insufficient. Notice under Section 138 of the N.I. Act was sent to the accused who refused to accept the same and failed to make payment of the cheque amount. Thereupon, the complaint came to be filed against him. The trial Court proceeded to convict the accused for offence under Section 138 of the N.I. Act by judgment dated 8.1.2014 and sentenced him to one year’s simple imprisonment and a fine of Rs.8 lakhs, in default to further undergo six months’ simple imprisonment. From the amount of fine, a sum of Rs.6,90,000/- was directed to be paid to the complainant finance company. The accused preferred an appeal against the judgment of conviction which came to be allowed by the appellate Court vide judgment dated 21.11.2016 as mentioned above and he was acquitted of the charge. Thereupon, the complainant finance company has approached this Court by way of instant application for grant of leave to appeal. 3. Shri Jodha learned counsel for the appellant vehemently urged that the appellate Court committed grave error on facts as well as law in acquitting the accused respondent of the charge. Thereupon, the complainant finance company has approached this Court by way of instant application for grant of leave to appeal. 3. Shri Jodha learned counsel for the appellant vehemently urged that the appellate Court committed grave error on facts as well as law in acquitting the accused respondent of the charge. The judgment under challenge is perse illegal and perverse and as such, it is a fit case for grant of leave to file an appeal thereagainst. He urged that the appellate Court proceeded on the premise that burden to prove existence of the legally enforceable debt was upon the complainant finance company whereas the statutory presumption operates in favour of the holder of the cheque in due course. As the finance company was holding the cheque issued by the accused in due course, no sooner the same was dishonoured, the accused was under the burden to disprove that the cheque was not advanced against a legally enforceable debt and not the other way round. He relied upon the judgment rendered by the Hon’ble Supreme Court in the case of B.M. Basavaraj. vs. Srinivas S. Datta reported in 2016 SC Candid 427 and urged that the judgment of the Appellate Court is conceptually and legally unsustainable and thus, leave deserves to be granted for filing an appeal there against. 4. I have heard and considered the arguments advanced at the Bar and have gone through the impugned judgment and the original record. 5. Though it is true that as per Section 139 of the N.I. Act, once a cheque held in due course is dishonoured, the burden shifts on to the accused to disprove that he does not owe the debt or liability but inspite thereof, it cannot be denied that the initial and basic task of asserting the bare facts under which the liability to make payment of the cheque arose is upon the complainant as laid down by the Hon’ble Supreme Court in the celebrated judgment of M.S. Narayana Menon @ Mani vs. State of Kerela & Anr. reported in AIR 2006 SC 3366 . Unless the basic allegations of existence of liability are set out by the complainant in the complaint and so also in the evidence, the Court would be loathe to raise a presumption regarding existence of a legally enforceable debt against the accused. reported in AIR 2006 SC 3366 . Unless the basic allegations of existence of liability are set out by the complainant in the complaint and so also in the evidence, the Court would be loathe to raise a presumption regarding existence of a legally enforceable debt against the accused. A bald allegation that the accused who advanced the cheque was under an obligation to honour the same is unacceptable. The complainant is required atleast to state before the Court that the cheque was received by it against some debt or liability. These facts have to be narrated and proved by way of admissible substantive evidence. If such allegations exist then of course, the rebuttable burden would shift on to the accused to disprove existence of the liability. In the case at hand, all that was mentioned in the complaint was that the accused had taken a loan and that the disputed cheque was advanced for the repayment thereof. Neither the date nor the amount of loan was mentioned in the complaint. The accused denied his liability towards the disputed cheque. It is common knowledge that finance companies do collect blank signed cheques of the loanees by way of security at the time of advancing the loan. 6. Admittedly, no document pertaining to the loan account of the accused was exhibited and proved by the complainant. I have carefully perused the statement of the complainant’s witness Chandrahas Rathi. In his evidence, the witness admitted that details of transactions pertaining to the loan account of the accused were not in his personal knowledge. The witness also admitted that he did not know the accused personally. In his cross examination, the witness conceded that he did not know as to when the cheque was presented ; when it was returned and for what reason, the same was dishonoured. A pertinent question was put to the witness as to whether the company was having any documents other than the cheque to which, the witness feigned ignorance. The accused himself appeared in defence evidence as AW1 and stated that he had never entered into any loan transaction with the finance company. He even denied his own signatures on the cheque and also stated that he did not receive the notice sent by the finance company. The accused himself appeared in defence evidence as AW1 and stated that he had never entered into any loan transaction with the finance company. He even denied his own signatures on the cheque and also stated that he did not receive the notice sent by the finance company. The Appellate Court considered all these aspects of the matter and came to a conclusion that the initial burden to assert and prove that the cheque was received by way of repayment of loan advanced to the accused was upon the appellant finance company. The appellate Court also found that the complainant’s case was based on vague and uncertain allegations. Neither the date of advancement of loan nor the exact amount thereof was disclosed by the complainant either in the complaint or in evidence. The hire purchase agreement under which the loan was allegedly advanced to the accused was not exhibited. The exact status of the loan account was also not clarified by the complainant in the complaint or evidence. Considering these lacunas appearing in evidence to be fatal to the complainant’s case, the appellate Court acquitted the accused by the impugned judgment dated 21.11.2016 and rightly so, in my opinion. Though it is true that the holder of cheque in due course has the advantage of a presumption against the person advancing the cheque, but it is a cardinal principal of criminal jurisprudence that even in cases where reverse burden of proof is on the accused, the initial onus of setting out the basic allegations required to prove the essential ingredients of the offence is always upon the prosecution. The complainant is not absolved from the liability to lead evidence to lay down the basic foundation of its case and cannot be allowed to state that the accused should be punished merely because the cheque was given in due course. 7. As discussed above, the complaint as well as the evidence led in support thereof is totally bereft of any particulars whatsoever regarding the alleged loan transaction and thus the complainant’s case lacked the very foundation required to prove existence of liability of the cheque amount against the accused. It may even be possible that the cheque was presented for a time barred debt as the loan transaction could have been for a period beyond three years. It may even be possible that the cheque was presented for a time barred debt as the loan transaction could have been for a period beyond three years. So far as the Supreme Court judgment relied upon by the learned counsel for the applicant finance company is concerned, the ratio thereof does not apply to the instant case as it is totally distinguishable on facts. In the said case, material particulars of the loan transaction were set out in the complaint and the agreement executed between parties was also exhibited. In this background and in the peculiar facts of that case, the Supreme Court went on to hold that the presumption of Section 139 of the N.I. Act operated against the accused. On the contrary, in the judgment of M.S. Narayana Menon (supra), the Hon’ble Supreme Court has clearly expounded that when the accused denies the existence of liability even by a preponderance of probability, the burden of proving the facts essential to unfurl the necessary ingredients of the offence under Section 138 of the N.I. Act and the existence of the liability would revert upon the complainant. In view of what has been narrated above, this Court is in total agreement with the findings recorded by the appellate Court in the impugned judgment of acquittal that the complainant failed to make out a case for holding the accused guilty of the offence under Section 138 of the N.I. Act. 8. As an upshot of the discussions made above, I do not find any reason to interfere in the well reasoned judgment dated 21.11.2016 passed by the learned Special Judge (SC/ST) Cases Court, Udaipur acquitting the respondent accused from the charge under Section 138 of the N.I. Act and there exist no grounds whatsoever to grant leave to the complainant for filing an appeal thereagainst. 9. Resultantly, the instant application seeking leave to file an appeal under Section 378(iv) Cr.P.C. is hereby dismissed as being devoid of any merit.