JUDGMENT : 1. This acquittal appeal has been preferred by the appellant against the judgment dated 05.08.2011 Passed by the learned Judicial Magistrate First Class, Bilaspur (C.G.), in Complaint Case No. 11/2011 by which respondent herein has been acquitted of the charge punishable under Section 138 of Negotiable Instrument Act, 1881. 2. It is an undisputed fact that both parties are relatives and acquainted with each other. It is also an undisputed fact that the cheque No. 003402 of Rs.18,00,000/- (Eighteen Lakhs Only) of I.D.B.I. Bank dated 28.05.2010 was dishonoured on 09.11.2010 (Ex.-C-1). For which appellant Virendra Kumar Bharadwaj sent a legal notice (Ex.-C-5) for recovery of the said amount, but the respondent/accused has not given any reply nor given the said amount. 3. The prosecution story, in brief, is that accused Pundas Anchal borrowed Rs.18,00,000/- from the appellant for purchase of a plot. Since the accused was a relative who had cordial relations with the appellant and was a government servant therefore the appellant gave the said amount to the accused/respondent. The accused assured to return the said amount within two months but the accused did not return the said amount within the said period. Thereafter, on the repeated demand of the appellant, the accused issued a cheque in question Ex.-C-1 which was deposited in the bank vide Ex.-C-2 on 08.11.2010 but due to insufficient amount in the account the same was dishonoured. For which information was given to the appellant vide Ex.-C-3 on 09.11.2010. Thereafter, on 23.11.2010 vide Ex.-C-5 a notice was sent to the accused by the appellant. Thereafter, after serving the notice, when the accused did not pay the said amount, complaint case was filed. 4. On stating the crime details to the accused he denied the said crime and stated that he gave a blank cheque and he has no knowledge of dishonour of the cheque but the appellant sent a notice to the accused/respondent. The appellant examined himself and Jitendra Kumar Singh in his defence. 4. On stating the crime details to the accused he denied the said crime and stated that he gave a blank cheque and he has no knowledge of dishonour of the cheque but the appellant sent a notice to the accused/respondent. The appellant examined himself and Jitendra Kumar Singh in his defence. After hearing both the parties, the trial Court found that the complaint was filed by Virendra Kumar Bhardwaj personally whereas the cheque in question Ex.-C-1 is in the name of “Bhardwaj Triaka Structural Eng.” and it was not established that the cheque in question was issued in the name of appellant and it is also not established by the prosecution witnesses that the cheque was issued in the name of appellant or the accused was borrowed the said amount from the appellant and the accused was acquitted from the aforesaid offence by the trial Court. 5. Learned counsel for the appellant submits that under Sections 118 and 139 of the N.I. Act, 1881 presumption of the case may be given to the appellant as the accused has admitted that he gave a blank cheque by signing it to the appellant, Therefore, the accused had to prove that the presumption made in favour of the complainant is not correct and should have refuted the presumption which has not been made. Therefore, the decision given by the trial Court is bad in law. He also submits that the appellant is the sole proprietor of “Bhardwaj Triaka Structural Eng.” in this situation if the appellant files a suit by his name, this may not affect the case of the appellant. In support of his argument, he placed reliance on the decision of Hon’ble Delhi High Court in the matter of Miraj Marketing Corporation v. Vishaka Engineering and Anr. Decided on 23.11.2004 and on the decision of Hon’ble High Court of Calcutta in the mater of Devendra Surana V. Bank of Baroda & Ors. Passed in W.P. No. 5521 (W) of 2017 on 12.12.2018. 6. None appeared on behalf of the respondent during the final argument in this case. 7. Heard learned counsel for the appellant and perused the material available on record including the impugned judgment. 8. After perusal of the material available on record, it is clear that the sign of the accused on the cheque in question Ex.-C-1 is not disputed. 6. None appeared on behalf of the respondent during the final argument in this case. 7. Heard learned counsel for the appellant and perused the material available on record including the impugned judgment. 8. After perusal of the material available on record, it is clear that the sign of the accused on the cheque in question Ex.-C-1 is not disputed. The second important thing is that the appellant himself admitted this the fact that other particulars of the cheque were filled by him apart from the signature. It is also clear that the cheque in question Ex.-C-1 is in the name of “Bhardwaj Triaka Structural Eng.” whereas the suit was not filed as the proprietor of the said firm and was filed by Virendra Kumar Bhardwaj personally. It is also clear that the appellant has not mentioned the name of “Bhardwaj Triaka Structural Eng.” anywhere in his complaint apart from this the appellant has not mentioned in his complaint the said amount as and when and before whom he was given to the accused. 9. In the above situation, it would be appropriate to first look at the provision of Section 138 of the Negotiable Instruments Act, 1881, which is as follows : Section-138. Dishonour of Cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [Substituted by Act No. 55 of 2002, w.e.f. 6-2-2003.],[a term which may extend to two years], or with fine which may extend to twice the amount of the cheque, or with both: (a) the cheque has been presented to the bank within a period of six months, [Now 3 months. See RBI Circular dated 4-11-2011 on page No. 3.] from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of the such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 10. 10. If seen from the perspective of the arguments of the complainant, the provisions regarding presumption under Section-118 and Section-139 of the Negotiable Instruments Act, 1881 are as follows:- Section 118- Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made: (a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer- that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course- that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an SP offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burthen of proving that the holder is a holder in due course lies upon him. Section 139- Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 11. A basic essential element for the offence of Section 138 Negotiable Instruments Act, 1881 is that the cheque should be for the full or partial discharge of a debt or other liability. 12. Under Section 139 of the Negotiable Instruments Act, 1881, a presumption will be created in favor of the holder when the check in question is in the name of the complainant. 12. Under Section 139 of the Negotiable Instruments Act, 1881, a presumption will be created in favor of the holder when the check in question is in the name of the complainant. Now if we think about who will be considered the holder, then in Section 9 of the Negotiable Instruments Act, 1881, holder in due course has been defined as follows:- Section-9.- “Holder in due course”.- “Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. 13. Who will be the recipient of the cheque, in Section 7 of the Negotiable Instruments Act, 1881, “payee” has been defined as follows:- Section- 7.- “Payee”. - The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”. 14. If we consider the facts and evidence in this case in the context of the above provisions of the Negotiable Instruments Act, then a situation becomes clear that the check in question, Exhibit C-1, is not in the personal name of the complainant whereas the complainant has filed the complaint on the basis of personal name. In such a case, he is the holder of the due sequence of the cheque in question. The burden of proof is on the complainant. If he is successful in proving this, then only under Section 139 and Section 118 of the Negotiable Instruments Act, 1881, a presumption can be made in his favour that the cheque in question is partly or completely instead of any legally provisioned loan or liability. 15. In this case, the statements of the complainant Virendra Kumar Bhardwaj and his witness Jitendra Kumar Singh are almost identical, apart from the complaint, have stated during cross-examination in evidence that a loan of Rs.18,00,000/-(eighteen lakh only) was given to the accused. He gave it in instalments. Complainant Virendra states that he had given approximately Rs.10,00,000/- (ten lakh rupees) to the accused in instalments on different dates and the remaining amount was given through cheque. He gave it in instalments. Complainant Virendra states that he had given approximately Rs.10,00,000/- (ten lakh rupees) to the accused in instalments on different dates and the remaining amount was given through cheque. But it is noteworthy that neither is there any clear statement regarding the said payment, nor are the dates mentioned, nor is it made clear as to when and how much amount was given by the complainant to the accused. At this stage, the case of the complainant is doubtful. 16. Complainant Virendra Kumar Bhardwaj has stated in his evidence that the transaction of the said amount took place from the year 2006 and was provided in instalments till the year 2008. He has also admitted that he has been working since 2008, then it is not clear how and when he collected such a huge amount. Even if the accused had given him the cheque in question, then why was it issued in his name rather than in the name of the proprietorship, the complainant has failed to clarify this. 17. The complainant has also admitted in his evidence that he has been paying income tax since the year 2007 in which he has declared his annual income as Rs.5,00,000/-(five lakh only). The question arises if he has been working since 2008, then from where he had collected such a huge amount before joining the job, which he gave to the accused in instalments. In such a situation, the complainant does not appear to have come before the court with clean hands. 18. The complainant has also admitted that in the complaint, he has not mentioned the date of giving the amount to the accused, the date of deposit of the cheque, the date of receiving the notice of dishonour of the cheque, or the date of sending the notice. The reason given for this is that he did not understand the need for it. He denied the suggestion of the defence that he had to visit the house of the accused and hence he brought the cheque from the house of the accused and got the cheque dishonoured to harass him. 19. The complainant's witness Jitendra Kumar Singh has stated that he is a college classmate of the complainant Virendra Kumar Singh and has been introduced to the accused Poondas Anchal through Virendra. 19. The complainant's witness Jitendra Kumar Singh has stated that he is a college classmate of the complainant Virendra Kumar Singh and has been introduced to the accused Poondas Anchal through Virendra. Apart from the complaint, he has stated that whenever the complainant had given the amount to the accused in instalments, he was present there, which does not seem natural and possible. Because in the complaint case itself, there is no clarity as to when, where and how much amount the complainant had provided to the accused. It has also become clear from the cross-examination of witness Jitendra Kumar Singh that the complainant works as a small contractor in the name of “Bhardwaj Triaka Structural Eng”. In such a situation, when the cheque is issued in the name of the said proprietorship, then this statement of the complaint is not found trustworthy. The accused may have been taking money from him in the name of purchasing a plot. If the amount had been taken in the name of purchasing a plot, the cheque would also have been issued in the personal name of the complainant and not in the name of the proprietorship on the basis of his being a petty contractor. The complainant has not presented any such document on record from which it can be believed that the sole proprietor of the proprietorship “Bhardwaj Triaka Structural Eng” which is mentioned in the cheque in question Exhibit C-1, is the complainant Virendra Kumar Singh. At this stage, it has not been proved that the complainant is the holder and payee in due course of the cheque in question Exhibit C-1. 20. So far as the judicial precedent presented by the appellant is concerned, They are based on specific facts, in which no principle of law has been propounded. Due to the difference of facts, the appellant does not get any support from the judicial precedent presented to him in this case. 21. Thus, the complainant has failed to establish himself as the holder in due course of the cheque in question under the presumption of section 139 and section 118 of the Negotiable Instruments Act, 1881, and even the fact of giving the said amount has not been proved. 21. Thus, the complainant has failed to establish himself as the holder in due course of the cheque in question under the presumption of section 139 and section 118 of the Negotiable Instruments Act, 1881, and even the fact of giving the said amount has not been proved. In the above situation, no presumption can be made in favor of the complainant, he has failed to discharge his burden of proof and his complaint case has not been proved. At this stage, the decision of the trial court is found to be reasonable in the light of the evidence presented and the law and does not require any interference. 22. Accordingly, as a result of the above discussion, this appeal against the acquittal is hereby dismissed. 23. The record of the trial Court be sent back forthwith along with the copy of this judgment for necessary action and compliance.