This appeal is directed against the judgment dated 30.12.2009 in C.C.No.1660/2005 whereby the I Addl. Civil Judge (Jr.Dn.), and JMFC, Hubli has dismissed the complaint filed by the appellant/complainant and has acquitted the respondent/accused of the offence punishable under section 138 of the Negotiable Instruments Act (hereafter referred to as ‘N.I. Act’ for short).

2. (i) The complainant presented a private complaint under Section 200 Cr.P.C. read with section 138 of N.I. Act, 1988 alleging that the accused approached the complainant for purchase of garments on behalf of her brothers viz., Raju Miskin and Parashuram Miskin, who were doing garment business under the name and style of ‘Nitin Garments’. In repayment of the said purchase amount, she issued two cheques bearing Nos.045159 and 045160 for a sum of Rs.50,000/- each, both dated22.04.2003 drawn on S.S.K. Co-operative Bank Ltd., and the said cheques when presented were dishonoured for ‘insufficient funds’. The complainant caused a statutory notice to the accused. The same was received by her, but failed to comply with the demand. Hence, the complainant sought action against the accused under section 138 of N.I. Act.

(ii) The complainant examined himself as PW-1 and produced in evidence the original cheques Exs-P1 and P2, memo issued by the bank Ex-P3, copy of the legal notice Ex-P4, postal acknowledgement Ex-P5. In order to substantiate the transaction and the dues, the complainant produced the bill book Ex-P6 and the relevant entry therein at Ex-P6(a) and Ex-P6(b). Ex-P7 cash book and Ex- P8 ledger extract and also income tax returns Exs-P9-P13, Ex-P14 Debtors list. Further, he examined two other witnesses as PW-2 and PW-3 namely, the bank officials.

(iii) In rebuttal, the accused examined herself as DW-1 and also examined her brother Raju Narayana Miskinas DW-2. The accused relied on the Xerox copy of registration certificate of Establishment Ex-D1 and the copy of the notice issued to the complainant Ex-D2 and the postal acknowledgement Ex-D3. The plea put forth by the accused was that she had purchased two second hand sewing machines from her brother Raju Miskin and in repayment thereof, she had issued two blank cheques to him and the complainant forcibly took the said two cheques from the drawer of her brother and made use of the same to lay a false claim against the accused.

(iv) On considering the above material, the trial court was of the view that the complainant failed to establish a legally enforceable debt. Further, the trial court came to the conclusion that by examining the brother of the respondent/accused, the accused has probabilised the defence set up by her and consequently, acquitted the accused of the alleged charge under section 138 of N.I. Act.

(v) Feeling aggrieved by the impugned judgment of acquittal, the complainant has preferred this appeal.

3. I have heard the learned counsel for the appellant/complainant Sri. Dinesh M. Kulkarni and the learned counsel for the accused/respondent Sri. Vittal S. Teli and have carefully examined the records.

4. (i) The learned counsel for the appellant/complainant has drawn my attention to the elaborate evidence adduced by the complainant and would submit that the complainant has not only established the transaction, but has produced cogent material to show that the accused purchased the garments from the complainant. The case of the complainant is that the accused made the purchases on behalf of her brothers. The said averment in fact is immaterial in deciding the issue under Section 138 of N.I. Act. It is immaterial as to on whose behalf, the accused incurred the debt. As long as it is proved that there was valid consideration for issuanceof the cheque, it suffices for the purpose of maintaining the complaint under Section 138 of N.I. Act. Further, the complainant having established that the said cheque was dishonoured for insufficient funds, all the ingredients of the offence are established by the compla