1. This appeal is preferred by the appellant-complainant being aggrieved by the judgment and order of acquittal dated 13.9.2010 passed by the Additional Civil Judge (Jr. Dn.) and JMFC, Mulbagal, in C.C No.417/2005. The appellant-complainant has preferred the above appeal challenging the legality and correctness of the judgment and order of acquittal passed by the Court below on the grounds as mentioned in the appeal memorandum.

2. Brief facts of the case of appellant-complainant is that the accused is the friend of complainant. Since the respondent-accused was in need of the amount for his immediate needs for purchase of land, as such, he approached the complainant to pay him a sum of Rs.50,000/- on 18.12.1999. Accordingly, the accused received Rs.50,000/- from the complainant and agreed to repay the same with interest at 12% p.a. and also return the same whenever the complainant demands and expressing his ability to arrange for the funds, issued a cheque bearing No.0854468 dated 23.03.2000 for sum of Rs.50,000/- in Kolar Gramina Bank, Mulbagal branch. In spite of assurance of the accused to repay the amount, he has not repaid either the principal amount or the interest amount. In spite of repeated demands and oral requests by the complainant and since the accused has not repaid the amount as agreed by him, the complainant presented the cheque for collection through SBM, Mulbagal branch on 04.09.2000. The said cheque returned because of “Insufficient of funds’ since the accused has not arranged the funds. The complainant had no other alternative and he got issued a legal notice dated 13.09.2000 through his advocate to the accused by means of RPAD. The said legal notice was duly served on the accused, but he did not repay or reply to the terms of notice and thus, the accused committed the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the N.I. Act’).

3. The Court below recorded the evidence on both sides. On the side of the appellant-complainant, the complainant has been examined as P.W.1 and he has produced four documents Exs.P.1 to P.4. On the side of the respondent-accused, the accused has been examined as D.W.1 and he also examined three independent witnesses as D.Ws.2 to 4 and got marked Exs.D.1 to D.3. After hearing learned Counsel on both sides, ultimately, the trial Court acquitted the respondent-accused holding that the appellant-complainant has not proved his case that the respondent accused has committed the offence under Section 138 of the N.I. Act. Therefore, the appellant-complainant is before this Court in this appeal.

4. I have heard the learned Counsel appearing for the appellant-complainant and the learned Counsel appearing for the respondent-accused.

5. Learned Counsel appearing for the appellant-complainant made submission that the trial Court has not correctly appreciated the oral and documentary evidence produced by the complainant before it. Though no material had been placed by the respondent-accused that he had repaid the amount of Rs.1.00 lakh, which was agreed to be paid in respect of purchase of two strips of land, even then, it was held by the Court below that issuance of the cheques by the respondent-accused was in connection with the transaction of sale of the landed property. Hence, the learned Counsel submitted that no documents are produced by the respondent-accused with regard to the payment of Rs.1.00 lakh to the appellant-complainant as contended by him. Without there being any documentary evidence for the proof of payment of Rs.1.00 lakh by the respondent accused to the appellant-complainant, it was wrongly held by the Court below that the amount had been already repaid and in spite of that the complainant has not returned the cheque and he has returned one cheque and retained another cheque so also the agreement which was said to have been entered into between the parties. Hence, the learned Counsel submitted that though there was such a transaction wh