Proof of possession of the loan amount and authenticity of signatures on cheques are crucial in cases under Section 138 of the Negotiable Instrument Act.

B.V. PINTO, J.-This appeal has been filed challenging the Judgment dated 21.04.2006 passed by the 22nd Additional Chief Metropolitan Magistrate and 24th Additional Small Causes Judge, Bangalore City in CC No. 15322/2004 acquitting the accused therein for the offence under Section 138 of Negotiable Instrument Act.

2. It is the case of the complainant/appellant that, respondent had issued two cheques for a sum of Rs. 2,75,000/- in all, in respect of the amounts due and legally recoverable from the accused and when the cheques were presented for payment through State Bank of Mysore, Cottonpet Branch, the same got dishonoured as per endorsement dated 20.05.2004 on the ground of "funds insufficient". Thereafter, the complainant issued notice on 04.06.2004, through Registered Post and Under Certificate of Posting under Section 138 of Negotiable Instrument Act calling upon the accused to pay the cheques amounts, but the notice sent through RPAD was returned unserved with an endorsement "intimation delivered and unclaimed, return to sender" and the notice sent though Under Certificate of Posting was duly served. But accused/respondent has not replied to the said notice nor he has paid the cheque amounts. Hence, after the period provided under the statute, complainant filed a private complaint before the jurisdictional Court under Section 200 of Cr.P.C.

3. The Court after taking cognizance of the offence, summoned the accused and the accused pleaded not guilty to the charges made against him. Thereafter, the complainant has examined herself as PW. 1 and got marked Exs.P1 to 12 in support of her case. The defence of the accused was one of total denial. He has got examined himself as DW1 and also one witness Chanda Bhagavan Das as DW2 and produced documents as per Exs.D1 to 3. The learned Magistrate after carefully scrutinizing the evidence on record has held that the complainant has not proved the case against the accused beyond all reasonable doubt and passed an order of acquittal. It is this order of acquittal which has been challenged by the complainant in this appeal.

4. Despite the case being posted before the Court on various dates neither the counsel for the appellant nor the counsel for the respondent appeared before the Court and submitted their arguments. The case is of the year 2006 and qualifies to be a case older than five years, hence this Court scrutinized the entire trial Court records personally and the matter is posted today for dictating Judgment.

5. The complainant filed a complaint on 07.07.2004 before the 16th Additional Chief Metropolitan Magistrate Court, Bangalore under Section 200 of Cr.P.C. In the complaint, it is stated that the accused Nos. 1 and 2 were well acquainted to her and during the month of November 2003, accused approached the complainant and borrowed a loan of Rs. 2,75,000/- for his domestic requirements and for business improvements. Accused after receipt of the said amount, promised to repay the same within a short period. It is stated in the complaint that, the complainant gave loan to the accused and the accused received the same and issued a cheque bearing No. 176337 dated 15.04.2004 for a sum of Rs. 1,50,000/-drawn on the State Bank of Mysore, City Branch, Bangalore- 560053 and another cheque bearing No. 218175 dated 09.04.2004 for a sum of Rs. 1,25,000/-drawn on the Shyamrao Vittal Co-operative Bank Limited, Extension Counter, St.Anns Education Society, Rajajinagar, Bangalore-10. The said cheques were issued by accused in discharge of the liability towards the complainant. It is stated in the complaint that, when the complainant requested the accused to return the amount of the cheques, accused refused to pay the amount. Therefore, the complainant presented those cheques through her bank namely State Bank of Mysore, Cottonpet Branch, Bangalore. But the said cheques were dishonoured and returned to the complainant with an endorsement dated 20.05.2004stating that "funds were insufficient