The duty of the accused to raise a probable defense and provide cogent evidence to rebut the presumption under Section 139 of the Negotiable Instruments Act.

H P SANDESH, J.

1. This appeal is filed under Section 378(4) of Cr.P.C. challenging the judgment of acquittal dated 03.07.2010 passed in C.C.No.635/2008 on the file of the Principle Civil Judge & Prl. JMFC., Dharwad and prayed this Court to convict the respondent for the offence punishable under Section 138 of Negotiable Instruments Act.

2. The ranking of the parties is referred as per their ranking before the trial Court.

3. The brief facts of the case is that, the appellant/complainant has obtained the hand loan of Rs.6,50,000/- from the complainant and he has issued two cheques for a sum of Rs.3,00,000/- and another sum of Rs.3,50,000/- in which one was honored and other cheque which was presented for encashment was returned with an endorsement "not arranged for" and he has issued legal notice. The accused also given reply to the legal notice denying the liability and hence he has filed the complaint. The Court below has taken cognizance and the complainant has adduced his evidence by examining himself as PW.1 and also examined two witnesses as PWs.2 and 3. The complainant relied upon the documents Exs.P1 to P7. The accused did not chose to lead any evidence however confronts the document of Ex.D1 in the crossexamination of PW.1. The Court below considering both oral and documentary evidence has acquitted the accused. Hence, the present appeal is filed.

4. The main contention of the complainant in this appeal is that the Court below failed to appreciate the evidence available on record in a perspective manner and erroneously comes to the conclusion that there was no legally recoverable debt rather it was an investment and therefore the offence under Section 138 of N.I.Act is not attracted. It has to be noted that whether an investment made on behalf of another person becomes a legally recoverable debt, when a person invests or lends money to invest to another person, that another person is a legal obligation, liability to repay it back, when such being the case, in the instant case, the same principle is applied and the respondent is liable to repay the same. The Court below failed to take note of the fact that issuance of cheque dishonored, demand notice is issued and the accused had issued untenable reply and the very reasoning given by the Court below is contrary to law and evidence on record. The judgment of the lower Court is illegal harsh and one sided and liable to set aside.

5. The counsel for the appellant/complainant in his arguments vehemently contend that the accused is businessmen and contractor is not disputed fact. The accused also not disputed the fact that the first cheque which was realized to the tune of Rs.3,00,000/- and the other cheque which is the subject matter was returned with an endorsement not arranged for. The Court below while appreciating the evidence came to the conclusion that the complainant has stated that it is a hand loan and also an investment and also the same was given for the service rendered and failed to take note of the fact that first cheque was realized and further failed to take note of the fact that signature is not denied. The evidence of the complainant is also not rebutted by entering into the witness box. The Court below also failed to take note of the fact that the complainant was acquitted in the complaint given by the accused. The Court below even though the accused did not probabalize his defence, failed to appreciate both oral and documentary evidence and doubted the complainant and the same is erroneous and it was proceeded in one way and did not consider the case of the complainant and the reasons assigned by the Court below is perverse and opposed to the evidence available on record.

6. Per contra, learned counsel for the accused in his arguments he would submits that in both the cases the complainant and accused are friends since two cases are filed against this accused. The main contention of the accused is that the cheque was stolen and intimated the same to