JUDGMENT : Vivek Singh Thakur, J. By the medium of this application, the applicant has sought leave to file appeal against judgment, dated 23rd June, 2016, passed by learned Judicial Magistrate 1st Class, Court No. 1 Una, H.P. in Criminal Complaint No. 100-I-09, whereby complaint preferred by the applicant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act') has been dismissed. 2. As per complaint, the case, in brief, is that respondent No. 1 had an outstanding payment of Rs. 1,71,191/- to be paid to the complainant applicant against supply of articles against bill Nos. 216 (Ex. CW3/A) and 260 (Ex. RW6), out of which a sum of 82,100/- had been paid by respondent No. 1 and to discharge remaining liability, respondent No. 1 had issued a cheque No. 262102 (Ex. CW1/A), dated 10th April, 2009, worth 40,000/- to be drawn at UCO Bank, Berthin, as a part payment with request to present the same in the month of July, 2009. The said cheque was presented by the proprietor of the applicant (hereinafter to be referred to as 'applicant') for encashment in his Bank, i.e. Canara Bank, Nangal Road, Una, but, on 30th July, 2009, applicant received an information from his Banker vide memo, dated 17th July, 2009, (Ex. CW1/B) about dishonour of the said cheque for the reason that the drawer had stopped the payment, whereby complainant served a notice, dated 6th August, 2009 (Ex. CW1/F) through registered post, but, respondent No. 1 had failed to make the payment within statutory period under the NI Act and, therefore, applicant had filed the complaint under Section 138 of the NI Act. 3. Issuance and signing of cheque (Ex. CW1/A), instructions to the Bank to stop the payment thereof and also receipt of notice, dated 6th August, 2009 issued by the applicant was not disputed during the trial, rather, reply, dated 12th August, 2009 (Ex. RW8) sent in response to notice, dated 6th August, 2009 was placed on record admitting therein the initial liability of Rs. 1,71,191/-, however, it was contended that out of the said amount, only Rs. 80,000/- was due after making all deductions including discount and for payment thereof, two cheques No. 262101 and 262102, worth Rs. RW8) sent in response to notice, dated 6th August, 2009 was placed on record admitting therein the initial liability of Rs. 1,71,191/-, however, it was contended that out of the said amount, only Rs. 80,000/- was due after making all deductions including discount and for payment thereof, two cheques No. 262101 and 262102, worth Rs. 40,000/- each, were issued with request to encash the same on or after 10th April, 2009, but, the applicant visited respondent No. 1 prior to aforesaid date and demanded the cash on the pretext that he was in a dire need of money, whereupon respondent No. 1 had paid Rs. 20,000/- each in four installments vide receipts No. 1996, dated 2nd April, 2009 (Ex. RW1); 1997, dated 3rd April, 2009 (Ex. RW2); 1998, dated 4th April, 2009 and 1999, dated 6th April, 2009 (Ex. RW3) and resultantly, entire due amount, for which cheques were issued, was paid, however, the applicant did not return cheque No. 262102 worth Rs. Rs. 40,000/- despite assurance to return the same. 4. It has further been contended in the reply to notice that 21 fridges and four washing machines supplied by the applicant were not up to the standard and out of these 21 fridges, 12 fridges were dented and defected and two washing machines were not working properly and despite repeated requests, no service to repair the aforesaid defected articles was provided by the applicant causing loss of Rs. 1,50,000/- to respondent No. 1 and it was requested in the reply to the notice either to repair the defected articles or receive back the same and it was stated that there was no occasion for presenting the cheque in question for encashment as respondent No. 1 had already cleared the payment. Respondent No. 1 had also produced a settlement, dated 21st August, 2009 on a letterhead of applicant (Ex. RW4) and a letter, dated 26th August, 2009 (Ex. RW7) received from the applicant asking respondent No. 1 to send back defected refrigerators enabling him to return the same to the Company. 5. Documents placed on record by respondent No. 1 had also not been disputed by the applicant except endorsement on receipt No. 1998 (Ex. RW3) wherein the said receipt had been shown to have been issued against cheque No. 262101 and the settlement, dated 21st August, 2009 (Ex. RW4) on the ground that endorsement on Ex. 5. Documents placed on record by respondent No. 1 had also not been disputed by the applicant except endorsement on receipt No. 1998 (Ex. RW3) wherein the said receipt had been shown to have been issued against cheque No. 262101 and the settlement, dated 21st August, 2009 (Ex. RW4) on the ground that endorsement on Ex. RW3 and the date of the document Ex. RW4 had been manipulated and tampered with by respondent No. 1 by changing the same from 21st August, 2000 to 21st August, 2009. 6. As issuance of cheque, presentation thereof and dishonouring of the same for instructions of respondent No. 1 to stop the payment are not in dispute, statements of Ashok Kumar (CW1), Satpal Singh (again recorded as CW1) and Raj Kumar (CW2) are not necessary to be discussed as the facts and documents proved by these witnesses are not in dispute. 7. Respondent No. 1 has examined one witness, namely Madan Lal as RW1, who proved on record the fact of repair of defective articles, i.e. refrigerators, by him in the shop of respondent No. 1. However, he had shown his ignorance about the source from where those refrigerators were procured/purchased by respondent No. 1 and also about the pendency of the transaction with regard to those articles with anyone. 8. Applicant has filed his affidavit in his evidence reiterating his complaint and in his cross-examination, he admitted that vide invoice No. 216, dated 23rd March, 2009 (Ex. CW3/A) and vide invoice No. 260, dated 6th April, 2009 (Ex. RW6) etc, he had sold refrigerators and washing machines etc. to respondent No. 1 and had received the cost thereof, however, he again self-stated that he had not received the cost. He admitted letter, dated 26th August, 2009 (Ex. RW7) and contents thereof whereby respondent No. 1 was asked to return the defective refrigerators further stating therein that cost of defective articles would be deducted from the account of respondent No. 1. He also admitted that he had received the payment vide receipts No. 1996, 1997, 1998 and 1999 and in the document, dated 21st August, 2009 (Ex. RW4), he had accepted that he had received payment against the blank cheque issued by respondent No. 1 and nothing had been left to be received, however, he had disputed the endorsement on receipt No. 1998 showing the said receipt against cheque No. 262101. RW4), he had accepted that he had received payment against the blank cheque issued by respondent No. 1 and nothing had been left to be received, however, he had disputed the endorsement on receipt No. 1998 showing the said receipt against cheque No. 262101. He also stated that the letterhead (Ex. RW4) claimed to be dated 21st August, 2009 was actually dated 21st August, 2000. Receipt of reply, dated 12th August, 2009 (Ex. RW8) in response to notice, dated 6th August, 2009 (Ex. RW1/ F) and contents thereof had been admitted by him. It has also been admitted in cross-examination that respondent No. 1 had made the payment against the purchase at the time of purchasing the articles and respondent No. 1 had informed about the defective pieces of 21 refrigerators and four washing machines with request to take those articles back. However, he self-stated that respondent No. 1 was not having any defective piece and he came to know about those defective articles only when he received the information about the stopping the payment from the Bank. 9. Applicant has based his claim for payment on the basis of bills No. 216 and 260 (Ex. CW3/A and RW6). Bill No. 216 is dated 23rd May, 2009 whereas Bill No. 260 is dated 6th April, 2009. Case of the applicant is that respondent No. 1 had made payment to the tune of Rs. 82,100/- against the amount of these bills and to discharge his remaining liability, he had issued cheque No. 262102, dated 10th April, 2009 (Ex. CW1/A) for Rs. 40,000/-. Perusal of bill No. 216 also reflects that receipt of Rs. 82,100/- cash payment has been mentioned on this bill whereas on the back side of bill No. 260 (Ex. RW6), receipt of Rs. 86,400/- has been endorsed by the applicant. In the front of bill No. 260, there is a mention of Rs. 86,400/- with initials of applicant. Further, receipt of Rs. 82,100/- is an admitted fact and the receipt shown vide endorsement made on the back side on bill No. 260 for Rs. 86,400/- has also not been disputed by the applicant. Further, respondent No. 1 has placed and proved on record receipts No. 1996, 1997, 1998 and 1999 (Ex. 86,400/- with initials of applicant. Further, receipt of Rs. 82,100/- is an admitted fact and the receipt shown vide endorsement made on the back side on bill No. 260 for Rs. 86,400/- has also not been disputed by the applicant. Further, respondent No. 1 has placed and proved on record receipts No. 1996, 1997, 1998 and 1999 (Ex. RW1 to RW3), which were issued by the applicant on 2nd April, 2009; 3rd April, 2009; 4th April, 2009 and 6th April, 2009 against receipt of payment to the tune of Rs. 20,000/- each. Applicant has admitted receipt of this amount, but, disputed the claim of respondent No. 1 that receipts No. 1998 and 1999 were issued for receipt of payment against cheques No. 262101 and 262102. But, admittedly, the fact remains that after purchase against bill No. 216 on 23rd March, 2009, a sum of Rs. 80,000/- was received by the applicant besides the payment of Rs. 82,100/- shown in front of bill No. 216 as also admitted and pleaded in the complaint to have been paid by respondent No. 1 against the purchase of articles against bills No. 216 and 260. The receipt vide endorsement on back side of bill No. 260 does not bear any date. Similarly, the time and date of payment of Rs. 82,100/-, mentioned in front of bill No. 216, has also not been mentioned. According to applicant, cheque No. 262102 for Rs. 40,000/- was issued as part payment of balance amount after payment of Rs. 82,100/-. Meaning thereby, payment of Rs. 82,100/- was made prior to 10th April, 2009. Bill No. 216 also has endorsement of cheques 01 and 02 worth Rs. 40,000/- each. These endorsements have not been disputed by the applicant. From endorsement made in front of bill No. 216 and also receipts, Ex. RW1 to RW3, it is evident that after 23rd March, 2009 till 6th April, 2009, respondent No. 1 has proved the payment of Rs. 1,62,100/-. These payments have been admitted by the applicant. Apart from this, endorsement on the back side of bill No. 260 issuing receipt for Rs. 86,400/- is also there. At what stage and time, this receipt was endorsed is not clear, but, the fact remains that this amount has been stated to have been received against bill No. 260, dated 6th April, 2009. 10. Though, letter Ex. Apart from this, endorsement on the back side of bill No. 260 issuing receipt for Rs. 86,400/- is also there. At what stage and time, this receipt was endorsed is not clear, but, the fact remains that this amount has been stated to have been received against bill No. 260, dated 6th April, 2009. 10. Though, letter Ex. RW7 finds mention in the last line making a request on 26th August, 2009 on behalf of the applicant to respondent No. 1 to make the balance payment, but, for admitted payments against bills No. 216 and 260, it is apparent that there was a minor amount not more than Rs. 2,000/- pending against these bills. Therefore, it is not clear that the request for making which balance payment has been made in letter, dated 26th August, 2009 (Ex. RW7). 11. Respondent No. 1 had replied the legal notice issued by applicant on 12th August, 2009, but, in the complaint, applicant has omitted to mention the said fact. In the said reply, respondent No. 1 has claimed payment of Rs. 80,000/- (Rs. 20,000/- each) vide receipts No. 1996, 1997, 1998 and 1999 (Ex RW1 to RW3) and also claimed that the two cheques for Rs. 40,000/- each, bearing No. 262101 and 262102, were issued against the balance payment of Rs. 80,000/- and after receiving Rs. 80,000/-, cheque No. 262102 for 40,000/- was not returned despite assurance and, thereafter, in the notice, there is a reference of defective articles supplied by the applicant. This reply was received by the applicant, which has not been denied and from letter, dated 26th August, 2009 written by applicant, its receipt by applicant has been fortified for the reason that letter, dated 26th August, 2009 (Ex. RW7) starts with the reference of written communication received by applicant from respondent No. 1. There is no communication between applicant and respondent No. 1 in those days except legal notice and reply. 12. From the aforesaid evidence on record, respondent No. 1 has rebutted the claim of applicant with regard to issuance of cheque No. 262102, dated 10th April, 2009 against the payment of cost of articles purchased vide bills No. 216 and 260 to the touchstone of preponderance of probability. 12. From the aforesaid evidence on record, respondent No. 1 has rebutted the claim of applicant with regard to issuance of cheque No. 262102, dated 10th April, 2009 against the payment of cost of articles purchased vide bills No. 216 and 260 to the touchstone of preponderance of probability. Respondent No. 1 has discharged the onus, which was upon him under the provisions of NI Act and after discharging of the onus by respondent No. 1, it was upon the applicant to lead cogent, reliable and convincing evidence to prove that cheque No. 262102 was issued against payment to be received by him as claimed in the complaint. 13. Claim of applicant is based on bills No. 216 and 260, dated 23rd March, 2009 and 6th April, 2009, respectively. There is endorsement of cash payment to the tune of Rs. 82,100/- on bill No. 216 and it is also the case of applicant that cash payment to the tune of Rs. 82,100/- was made by respondent No. 1 and for remaining payment against these bills, cheque No. 262102, dated 10th April, 2009 was issued by respondent as a part payment against the outstanding amount. The date of payment of Rs. 82,100/- is not mentioned on bill No. 216, but, it appears from the complaint as well as affidavit of complainant applicant filed in evidence that Rs. 82,100/- had been paid against the outstanding amount of Rs. 1,71,191/- of these two bills. Meaning thereby, a sum of Rs. 82,100/- was paid after 23rd March, 2009 and probably, on or before 10th April, 2009, as it is case of applicant that against outstanding amount, the cheque was issued as a part payment. During the intervening period between 23rd March, 2009 and 6th April, 2009, there are receipts of payment of Rs. 80,000/- by respondent No. 1 to applicant, which is not disputed by the applicant, but he has only disputed that the payment against receipts No. 1998 and 1999 was not against cheques, as has been endorsed in these receipts. 14. Be that as it may, the fact remains that Rs. 80,000/- was paid by respondent No. 1 after 23rd March, 2009 till 6th April, 2009. Again, there is endorsement on the back of bill No. 260 with respect to payment of Rs. 86,400/- against this bill made by respondent No. 1. 14. Be that as it may, the fact remains that Rs. 80,000/- was paid by respondent No. 1 after 23rd March, 2009 till 6th April, 2009. Again, there is endorsement on the back of bill No. 260 with respect to payment of Rs. 86,400/- against this bill made by respondent No. 1. In these circumstances, it appears that the payment due against bills No. 216 and 260 had already been made by respondent No. 1 prior to presentation of cheque for encashment. 15. As per admitted record/documents placed on record, receipt of a sum of Rs. 1,62,100/- after 23rd March, 2009 till 6th April, 2009 (i.e. Rs. 20,000/- each against receipts No. 1996, 1997, 1998 & 1999 and 82,100 cash payment pleaded in complaint and affidavit as complainant) is admitted by the applicant. According to applicant, the outstanding amount was Rs. 1,71,191/- (i.e. bill No. 216 to the tune of Rs. 84,163/- and bill No. 260 to the tune of Rs. 87,028/-). After deducting the admitted payment, i.e. Rs. 1,62,100/-, the outstanding amount remains to be Rs. 9,091/-. 16. Therefore, plea that cheque No. 262102, dated 10th April, 2009 for Rs. 40,000/- was issued as a part payment against outstanding amount of bills No. 216 and 260 appears to be incorrect as the applicant has admitted the receipt of Rs. 1,62,100/- and out of this, a sum of Rs. 82,100/- has been admitted to be received against these bills, but, he has not disclosed that against which amount, he had received a sum of Rs. 80,000/- vide receipts Ex RW1 to RW3. 17. Applicant is not a layman, but, is an established businessman dealing with retailers as well as company as evident from his letter Ex. RW7. He must have been maintaining the ledger account of his customers including respondent No. 1. When he is claiming non-receipt of payment against bills No. 216 and 260 and simultaneously, admitting the receipt of Rs. 80,000/- apart from Rs. 82,100/-, it was incumbent upon him to explain purpose for receipt of Rs. 80,000/-, which was received by him after 23rd March, 2009, on which date, according to applicant, respondent No. 1 had purchased the items/articles on credit. It is mentioned in bills No. 216 and 260 that these items were supplied on credit, but, at the same time, after date of bill No. 216, there is receipt of Rs. 80,000/- through receipts Ex. It is mentioned in bills No. 216 and 260 that these items were supplied on credit, but, at the same time, after date of bill No. 216, there is receipt of Rs. 80,000/- through receipts Ex. RW1 to RW3 and also admitted payment of Rs. 82,100/-. Not only this, there is an endorsement on the back side of bill No. 260 with regard to receipt of Rs. 86,400/-. In such circumstances, it cannot be said that cheque No. 262102, dated 10th April, 2009 was issued against the outstanding payment related to bills No. 216 and 260. 18. The applicant had not produced the copy of reply to legal notice alongwith his complaint nor he had referred the same in his complaint, but, remained silent about the response of respondent No. 1 to his legal notice. However, the said reply has not been disputed, rather, copy of the same was consented to be placed on record as Ex. RW8 by the applicant. In the said reply, there is reference of payment of Rs. 80,000/- on 2nd April, 2009; 3rd April, 2009; 4th April, 2009 and 6th April, 2009 vide receipts Ex. RW1 to RW3 and also issuance of two cheques No. 262101 and 262102 for Rs. 40,000/- each with further averment that the payment of Rs. 80,000/- was made prior to 10th April, 2009, i.e. date of postdated above referred cheques, was made on the request of applicant and in lieu of which the cheques were to be returned, but cheque No. 262102 was not returned. 19. Supply of defected pieces of articles has also been mentioned in the reply. Reply is dated 12th August, 2009 whereafter the applicant had written a letter, dated 26th August, 2009 (Ex. RW7) to respondent No. 1 asking him to send back defected refrigerators with further request to send the remaining payment. Neither in the reply nor in letter, dated 26th August, 2009, there is any reference of date of supply of refrigerators, which were found to be defective. 20. RW7) to respondent No. 1 asking him to send back defected refrigerators with further request to send the remaining payment. Neither in the reply nor in letter, dated 26th August, 2009, there is any reference of date of supply of refrigerators, which were found to be defective. 20. From the evidence on record, it is apparent that payment against bills No. 216 and 260 had already been made and, therefore, there might be further supply of articles against which some payment might have been due, but, so far as issuance of cheque No. 262102, dated 10th April, 2009 as a part payment against bills No. 216 and 260 is concerned, the same is not substantiated from the record, rather, it is falsified from the documents as well as admissions of applicant in his cross-examination. 21. From the above discussion, it emerges that there is possibility of issuance of cheque, not for part payment against bills No. 216 and 260, but, for any other payment due on account of supply of articles other than the articles mentioned in bills No. 216 and 260 as applicant himself has admitted the receipt of Rs. 1,62,100/- after 23rd March, 2009. Had the said receipt of amount been against the supply of other articles, the applicant would have brought relevant material on record by leading evidence in that regard. Omission on the part of applicant to do so is definitely fatal for his complaint rendering his plea of issuance of cheque against part payment for articles purchased vide bills No. 216 and 260 as false. 22. Making endorsement in receipts Ex. RW3 mentioning them against cheque No. 262101 and 262102 by respondent No. 1 does not make any difference except that this endorsement is to be discarded, but, as discussed above, the receipt of amount against these receipts has not been disputed and, therefore, the claim of payment by respondent No. 1 against these receipts is undisputed and such endorsement by respondent No. 1 does not render these documents liable to be rejected. 23. Even if it is considered that payment of Rs. 80,000/- vide receipts No. 1996, 1997, 1998 and 1999 (Ex. RW1 to RW3) was not against either cheques No. 262101 and 262102 or Bill No. 216, then also, cash payment of Rs. 82,100/- is admitted in complaint and affidavit of applicant filed in evidence and payment of Rs. 23. Even if it is considered that payment of Rs. 80,000/- vide receipts No. 1996, 1997, 1998 and 1999 (Ex. RW1 to RW3) was not against either cheques No. 262101 and 262102 or Bill No. 216, then also, cash payment of Rs. 82,100/- is admitted in complaint and affidavit of applicant filed in evidence and payment of Rs. 86,400/- against Bill No. 260, endorsed on its back side, has not been disputed. Rather, this bill (Ex. RW6) alongwith other documents, was placed on record with consent of applicant, which indicates that against payment of Rs. 1,71,191/- of two bills No. 216 and 260, an amount of Rs. 1,68,500/- had already been paid and, therefore, cheque No. 262102 worth Rs. 40,000/- cannot be said to have been issued as part payment of balance amount of Bills No. 216 and 260, which comes to be Rs. 2,691/-. 24. So far as documents/settlement, dated 21st August, 2009 (Ex. RW4) is concerned, the same does not pertain to the cheque involved in present dispute as in the last line of the said document, it has specifically been stated that cheque No. 0187977, dishonoured by the Bank, had no value after the settlement whereas in present dispute, cheque No. 262102 is involved. Plea of applicant that the date in the said document has been tampered with and manipulated by respondent No. 1 may be correct, but, this document is liable to be discarded for reasons discussed hereinbefore. Rejection of this document does not make any case in favour of the applicant. 25. From the evidence on record, it emerges that the defence version was more probable and plea of applicant complainant is not plausible and no fruitful purpose is going to be served by granting the leave, as prayed. There is not even a single remote issue, consideration of which may have any positive result in favour of applicant complainant. Therefore, it is not a fit case for grant of leave to appeal. Hence, the application is dismissed.