ORDER : 1. Heard learned counsel for the parties. 2. The learned Additional Sessions Judge II, Jamshedpur has acquitted the accused, opposite party no.2, herein of the charge under Section 138 of the Negotiable Instrument Act in Criminal Appeal No. 23 of 2013 and set aside the order of conviction rendered by the learned Chief Judicial Magistrate, Jamshedpur in C/1 Case No. 1445 of 2010. As per the complainant petitioner herein, the accused proprietor of Jaiswal Mineral Products, used to purchase diesel from the registered partnership firm of the complainant, who had been maintaining current and running account relating to the transactions. In view of the supply made, the accused opposite party no.2 herein had given cheques in discharge of his debt and liability. Particulars of the cheques are as follows:- I. Cheque No. 89249 dt.19.10.2009 of Bank of India, Bistupur, Jamshedpur of Rs. 1,67,550/- II. Cheque no. 89231 dt.12.10.2009, Bank of India, Bistupur, Jamshedpur of Rs. 1,67,550/- III. Cheque no.89221 dt.25.9.2009 of Bank of India, Bistupur, Jamshedpur of Rs. 1,67,550/-to the complainant / petitioner. The cheques on being presented by the complainant for payment were returned unpaid with remarks of insufficiency of the funds in the accused person's account. On 12.03.2010 the complainant was informed about dishonour of the cheques. The accused asked him to redeposit the cheques, which was done on 16.03.2010, but dishonoured on the same date due to insufficient fund. Thereafter a legal notice in terms of Section 138 of the N.I. Act was sent by the complainant on 09.04.2010 with a request to make payments within 15 days. The notice was returned unclaimed on 17.04.2010 and was received on 19.04.2010 by the complainant. Despite service of notice having been complied under Section 138 of the N.I. Act, the accused failed to pay the amount in question. The complaint case was instituted thereafter. Summons were issued and after explaining accusation to the accused to which he pleaded not guilty, the trial commenced. Statement of the accused was recorded thereafter under Section 313 Cr.P.C. 3. The complainant exhibited the following documents:- I. Ext.1 is the authorization letter. II. Ext.2 and Ext.2/3 are the three cheques each of Rs.167,50/- III. Ext.3 to Ext.3/2 are the cheque return memo of dt.12.3.10. IV. Ext.3/3 to Ext.3/4 are the cheque return memo of dt. 16.3.10. V. Ext.4 is the advocate notice VI. Ext.4/1 is the postal receipt VII. Ext. The complainant exhibited the following documents:- I. Ext.1 is the authorization letter. II. Ext.2 and Ext.2/3 are the three cheques each of Rs.167,50/- III. Ext.3 to Ext.3/2 are the cheque return memo of dt.12.3.10. IV. Ext.3/3 to Ext.3/4 are the cheque return memo of dt. 16.3.10. V. Ext.4 is the advocate notice VI. Ext.4/1 is the postal receipt VII. Ext. 5 is the envelope. 4. The defence examined one witness D.W.1 namely Chandra Mandal and adduced 2 vouchers signed by accountant Karan and Arun marked as Ext. A, Ext.A/1, Ext.B and Ext.B/1. 5. The learned Trial Court found the ingredients of the offence made out and convicted the accused for the said offence under Section 138 of the N.I. Act and sentenced him to undergo rigorous imprisonment for 1 year and pay compensation of Rs.6,00,000/- to the complainant. 6. In appeal, learned Court of Additional Sessions Judge II, Jamshedpur has after copious discussion of the provisions of law, material evidences on record and sufficient hearing come to a considered finding that the accused / appellant had discharged the initial onus of proof, creating doubts about the existence of a legally enforceable debt or liability and proving the existence of consideration as improbable or doubtful, now the onus would shift to the complainant, who had to prove it as a matter of fact beyond all reasonable doubts. But he has failed to prove it, which would dis-entitle him to the grant of relief on the basis of all the three cheques in question. 7. But he has failed to prove it, which would dis-entitle him to the grant of relief on the basis of all the three cheques in question. 7. The learned Appellate court has been guided by the following factors:-the petrol pump was closed in October 2009; presently the petrol pump is closed; he has admitted that the account of sale of diesel was being maintained and Sales Tax was being paid.(but these facts have not been proved); he has further admitted that he has not given the clear cut quantity of sale of diesel in complaint petition for which cheques in question were issued; although it is admitted case of complainant firm that account for the transactions was being maintained by complainant firm and the payments made by the accused in respect of the diesel, supplied to him were credited to the account of the accused for clearing dues, maintained by complainant firm but during cross examination he has admitted that he has no paper to show that cheques in question were issued for sale of diesel; he has also admitted that diesel sale memo bears no signature of accused ; he has also admitted that he had not given any receipt to accused for purchasing of diesel; he has also stated that vouchers do not bear his signature but signature of Mohan and Arun Kumar ( staffs of complainant) on vouchers (Ext.A + A/1 and Ext.B + B/1) have not been denied and he has denied the suggestion suggested during cross-examination on behalf of the accused – appellant that cheques in question were given to him in advance. Learned Appellate Court further analyzed Ext.A and A/1, which are signatures of staffs of complainant relating to payment of Rs.1,67,550 on 30.10.2009. Similarly Ext. B and B/1, signature of the staff of the complainant, Mohan and Sri Arun Kumar relating to payment of same amount on 25.03.2010. Learned Appellate Court has on analysis opined that cash was paid by accused to complainant firm twice and the amount given each time was Rs.1,67,50/-, which is the amount mentioned on each cheques in question given by the accused to complainant firm. 8. Learned Appellate Court has on analysis opined that cash was paid by accused to complainant firm twice and the amount given each time was Rs.1,67,50/-, which is the amount mentioned on each cheques in question given by the accused to complainant firm. 8. We however find from the materials on record and the aforesaid discussion that learned Appellate Court failed to notice that there was no such evidence on record in respect to the third cheque i.e. also of the same amount, perhaps the one bearing no.89249 dated 19.10.2009 drawn on Bank of India, Bistupur, Jamshedpur. 9. Learned counsel for the opposite party no.2 however tried to explain that the said cheque had no bearing to the controversy. Since the petrol pump was closed and there was no other evidence to establish the factum of sale of diesel of any such quantity to the accused, learned Appellate Court was justified in coming to a finding that complainant failed to prove the existence of a legally enforceable debt or liability after the accused discharged the initial onus of proof by adducing Ext. A and A/1 and Ext.B and B/1. 10. We are not making any comment on the merits of the case at this stage as it might prejudice the case of the parties contesting on merits. However, on a considered view of the matter, we are satisfied that leave to appeal should be granted to the petitioner in such circumstances. Accordingly, the instant petition is allowed. Petition allowed.