The main legal point established in the judgment is that the accused's failure to rebut the presumption under Section 139 of N.I. Act, along with the lack of credible evidence for the defense, led to the setting aside of the acquittal and conviction under Section 138 of the N.I. Act.

H.P. SANDESH, J.

1. This appeal is filed under Section 378(1) of Cr.P.C. challenging the judgment of acquittal passed in C.C.No.437/2009 dated 25.05.2010 on the file of the Prl. Civil Judge and JMFC, Chikodi.

2. The brief facts of the case is that it is the case of the complainant, who is the appellant in this case contended before the Court below by filing the complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instrument Act (for short, the 'N.I. Act') that he had advanced a loan of Rs.90,000/- to the accused for his truck business through his friends on 11.01.2008 at his residence. The accused has assured repayment of the said amount within a couple of months, but failed to repay the same and hence the complainant insisted the accused to pay the amount and the accused had issued the cheque on 06.05.2009 and when the same was presented with his bank, the same was returned with an endorsement 'funds insufficient'. Thereafter, the complainant issued notice to the accused on 08.06.2009 through his advocate and the same was served on him on 10.06.2009 and in spite of receipt of the notice, he did not choose to give any reply and comply the demand of the notice and hence without any other alternative, the complainant has filed the complaint.

3. It is the contention of the complainant that he got himself examined as PW.1 and besides examined one witness as PW.2 and got marked the documents as Exs.P.1 to P.4(a) and the accused also examined himself as DW.1 and examined one witness as DW.2 and he did not choose to mark any documents in support of his defence.

4. The Court below after considering both the oral and documentary evidence, acquitted the accused and hence the complainant has preferred this appeal.

5. The complainant in the appeal memorandum has contended that the Court below ought to have considered that there is a business transaction between the complainant and the accused and the accused himself admitted that he has issued a blank cheque and it clearly shows that the signature of the accused not disputed and after bouncing of the cheque, he has issued the notice and the same was served and the accused did not choose to reply to the said notice and the Court below failed to appreciate the fact that PW.2 has clearly supported the case of the complainant and the Court below erroneously acquitted the accused on the ground that the prosecution has utterly failed to establish the guilt of the accused in spite of sufficiently proved the guilt of the accused and hence the judgment of acquittal is liable to be set aside.

6. The counsel appearing for the appellant in his argument he vehemently contended that the accused did not dispute the issuance of the cheque and also his signature and further he did not dispute the issuance of legal notice and he has not given any reply to the said notice and the Court below erroneously accepting the defence of the accused in para No.19 of the judgment though comes to the conclusion that the accused admitted the issuance of the cheque and no reply has been given to the notice, erroneously comes to the conclusion that the complaint is not prudent manner only on the ground that PW.1 has admitted in the cross-examination that he used to write in the diary about the income and expenditure from the agriculture and tractor business and if really he advanced any loan to anybody he used to write it in the dairy and he has not produced the said dairy before the Court in order to substantiate that he has lent the money and also erroneously observed that it is not the case of the complainant that the accused is the relative of him and only he has examined his relative as one of the witness as PW.2 and he has not chosen to examine his uncle leaving others and comes to the erroneous conclusion and the very reasons assigned by the Court below is opposed to the principles of law laid down by the Hon'ble Apex Court and failed to draw the presumption under Se