JUDGMENT : 1. Appellant is the original complainant and is engaged in the business of cloths in Radhanpur and opponent original accused, having his shop in the very town, also is known to the appellant for more than 15 years from the date of filing of the complainant. The appellant was contacted by the original accused for borrowing the sum of Rs.2 lakhs, as he needed the same for his business. It was promised that the same would be returned to him in about 10 days time. The money was lent and on expiry of the stipulated time period, when contacted the opponent asked the appellant to wait for some time and thereafter issued a cheque drawn upon Janta Sahkari Bank Ltd. dated 25.5.2007. It was assured that the sum would be honoured by his banker. It is the case of the appellant that to the utter shock and surprise of the appellant, the cheque was dishonoured by the banker and hence, after receiving the memo of return of cheque, the appellant issued a legal notice on 16.6.2007 and reply given to the same was a very vague reply by the accused. Hence, the complaint under section 138 of the Negotiable Instruments Act (“the N.I. Act” for short) was preferred before the learned Judicial Magistrate First Class, Radhanpur on 20.7.2007, which was numbered as Criminal Case No.598 of 2007. The Court allowed both the sides to adduce the evidence and after following the due procedure of law including recording of further statement of respondent No.2, under section 313 of the Code of Criminal Procedure, it held against the complainant, thereby acquitting respondent No.2 from the charge under section 138 of the N.I.Act. It was the defence of respondent that the complainant is partner of Laxmi Finance, that the money was financed by Laxmi Finance and, as there was a dispute with regard to the accounts, the cheques, which were given in advance to Laxmi Finance have been misused by one of the partners (i.e. the complainant). Learned Additional Judicial Magistrate First Class, Radhanpur on due appreciation of evidence, noticed that the complainant had accepted that Laxmi Partnership Firm was constituted in the year 1999, which had 4 partners and the complainant was one of the partners. The said firm did not have licence to advance the money and the same got closed in the year 2003. Learned Additional Judicial Magistrate First Class, Radhanpur on due appreciation of evidence, noticed that the complainant had accepted that Laxmi Partnership Firm was constituted in the year 1999, which had 4 partners and the complainant was one of the partners. The said firm did not have licence to advance the money and the same got closed in the year 2003. The books of accounts of the firm have been destroyed in the year 2003. Therefore, no details of accounts or any documentary evidence in relation to the same have been produced. Radhanpur Peoples Cooperative Bank has gone into liquidation and Shri Himmatlal Tribhovandas Mulani was one of the partners was also the founding member of the Cooperative Bank. It was also agreed by the appellant that he had lodged a complaint as an Administrator of Laxmi Finance and the cheque issued was from the hypothecation account of the bank, the dealing with the bank was of the year 2007 and the complainant himself had studied law. 2. The Court relying on the decision of the Apex Court in the case of M/s. Kumar Exports v. M/s. Sharma Carpets, AIR 2009 SC 1518 , noticed that once there is no proof of the amount lent, reasonable and legally enforceable debt does not get proved. Moreover, a legal presumption under sections 118 and 139 available under the N.I.Act have been duly rebutted by the respondent accused. Accordingly, it had held that the Court may not depend on mere filing of an application under section 138 of the N.I.Act and invoked presumption under section 139 of the N.I.Act as that may lead to injustice or mistaken conviction. 3. As is well settled law that the appellate Court even when with the very evidence is in a position to arrive at a different conclusion, what has been adduced and concluded by the trial Court per se may not be the ground for the Court to intervene. The Court, if finds the material illegal and palpably causing miscarriage of justice, it needs to intervene. 4. This Court has heard at length learned advocate Mr.Mulani appearing for the original complainant and appellant and also learned Additional Public Prosecutor for respondent No.1 and Mr.N.J.Shah for respondent No.2 in legal aid. The transaction is averred to be of the year 2007 and the cheque being of the year 2007, no satisfactory answer is forthcoming. 4. This Court has heard at length learned advocate Mr.Mulani appearing for the original complainant and appellant and also learned Additional Public Prosecutor for respondent No.1 and Mr.N.J.Shah for respondent No.2 in legal aid. The transaction is averred to be of the year 2007 and the cheque being of the year 2007, no satisfactory answer is forthcoming. It is quite apparent from the judgment and the material that has been adduced before this Court that the trial Court has rightly appreciated oral as well as documentary evidence to conclude that initial burden, which was required to be discharged by the complainant appellant of reasonably proving legally enforceable debt has failed to establish the same. It is a trite law that the initial burden of proving legally enforceable debt is by the original complainant. What all the complainant needs to prove is to reasonable establish that the debt existed which is legally enforceable. 5. It is also a matter of record that one of the partners of partnership firm Laxmi Finance which is closed down in the year 2003, was a founding member of the Bank and the said Bank had gone into liquidation. The cheque of the account of hypothecation, which ordinarily is being taken by the bank from the customers to whom the loan is advanced against the hypothecation of goods, has been used. This also appears to be a sheer misuse of authority, which one of the partners would have an access towards those documents and hence the trial Court was absolutely right when it concluded that not only there is a complete absence of any books of accounts of Laxmi Finance, which is said to have advanced the sum of Rs. 2 lakhs, the complaint is by one of the partners of the partnership firm to initiate the complaint. Therefore, with the complainant having failed to discharge the initial burden and the respondent accused on the contrary having rebutted the presumption, the Court rightly decided that the prosecution failed to establish the gilt under section 139 and section 138 of the N.I.Act to hold the respondent liable for the offence under section 138 of the N.I.Act. 6. This Court deems it fit not to permit admission of the appeal, which is being decided and dismissed in limine. Accordingly, the appeal is dismissed. 7. 6. This Court deems it fit not to permit admission of the appeal, which is being decided and dismissed in limine. Accordingly, the appeal is dismissed. 7. The record and proceedings which is called for verification and for close perusal of the material on record shall be returned the Court concerned.