This appeal is filed by the unsuccessful complainant challenging the order of acquittal passed by the XVI Additional CMM, Bangalore, dated 4-4-2002 in C.C. No. 34858 of 1999.

2. Brief facts of the case are that the appellant/complainant, M/s. Ganesh Enterprises represented by its partner H.N. Narasimha Gupta and that the accused had purchased raw silk and twisted yam on credit basis from the complainant and for repayment of the same she had issued 3 cheques and when they were presented to the Bank for encashment, they were returned with an endorsement 'Funds Insufficient'. So, the complainant got issued the demand notice to the accused calling upon her to pay the cheque amount and the same was served on the accused but inspite of that, she failed to pay the same, therefore, the complainant filed a complaint against her for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. During the course of trial, the complainant examined himself as P.W. 1 and got marked Exs. P. 1 to P. 12. Thereafter, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded and accused-Sarala examined one witness as D.W. 1 in support of her case. Hence, this appeal.

3. Heard the arguments of the learned Counsel appearing on both sides and perused the records.

4. It is submitted by the learned Counsel for the appellant that after considering the evidence, the Trial Court acquitted the respondent for a simple reason that the appellant has not produced the single invoice bills before the Court to show that the accused has purchased silk from the appellant-company and the said 3 cheques Exs. P. 2 to P. 4 issued by the respondent have not been totally denied by her husband. It is argued that when the respondent issued 3 cheques for the amount due by her, she ought to have given reply immediately after receipt of the same. Moreover, the Trial Court has wrongly come to the conclusion that even if the cheques were received as security by admitting the signature and date mentioned in Exs. P. 2 to P. 4, the burden lies on the respondent to rebut the evidence. But in the instant case, no such steps have been taken by the respondent to rebut the evidence of the respondent. In fact, the respondent with ulterior motive failed to enter the witness-box and depose whether the said cheques were issued by her are legally enforceable debt or otherwise. If at all the cheques were issued by the respondent as security, after repayment of the amount due, she would have insisted the appellant to return those cheques which were taken as security. Therefore, the Trial Court has totally recorded wrong findings on flimsy grounds. It is also argued that the appellant has produced Ex. the statement wherein, the date and bill number has been mentioned and that the transaction commenced from 1993 onwards but the cheques were issued in 1998. Therefore, the evidence adduced on behalf of the respondent without any ground cannot be taken into consideration even though he was the husband of the respondent. But the Trial Court wrongly believed the version of P.W. 1 and held that the notice issued if any, was not served on respondent and those cheques were collected as security and no books of accounts, bills and invoice are produced to show that the respondent was due in a sum of Rs. 1,10,000/-to the appellant. Since the respondent has not rebutted the evidence by examining herself as defence witness but her husband Rajendra examined as D.W. 1 and some more witnesses about the purchase of raw silk from the appellant. Hence, he prays that the appeal be allowed by setting aside the order of acquittal passed by the Trial Court and convict the respondent.

5. In support of his contention, learned Counsel for the appellant relied upon a decision of this Court in case of H. Narasimha Rao v R. Venkataram1, wherein, it has been held as under:

"Section 138 - Offence under - Repayment of time barred debt - Issue of cheque - Whether con