JUDGMENT :

In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as ‘N.I. Act’), the learned XII Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter for brevity referred to as ‘trial Court’), in C.C.No.448/2008 pronounced the judgment of acquittal on 08.06.2010. It is against the said judgment of acquittal, the complainant has preferred this appeal.

2. The summary of the case of the complainant in the trial Court is that the accused was under its employment as an Executive Production. While he was in service, he was granted with a housing loan of a sum of Rs.5,00,000/- which he had agreed to repay with the prevailing rate of interest. After availing the loan the accused resigned from his employment and was relieved from the services on 16.03.2007. Since, he was due in repayment of housing loan to the company, the accused issued a cheque bearing No.645661 dated 21.08.2007 drawn on U.T.I Bank, M.G. Road Branch, Bengaluru, in favour of the complainant company for a sum of Rs.5,00,000/-. When the complainant presented the cheque for realisation, the same was returned dishonoured with a shara “insufficient funds”. After that the complainant got issued a legal notice to the accused demanding payment of the cheque. Despite receipt of notice, since the accused failed to pay the cheque amount, the complainant was constrained to institute a case against him for the offence punishable under Section 138 of the N.I.Act.

3. On behalf of the company, one Sri.Shaik Mohamed who is said to be the principal officer/authorised signatory of the complainant was examined as PW1 and documents from Exs.P1 to P5 were marked. The accused got himself examined as DW1 and examined one Sri.Anzar C.A as DW2 and got marked the documents from Exs.D1 to D17. After hearing both side, the trial Court by its judgment dated 08.06.2010 acquitted the accused of the alleged offence. It is against the said judgment of acquittal, the complainant has preferred this appeal.

4. Learned counsel for the appellant in her argument vehemently submitted that when the borrowel of housing loan for a sum of Rs.5,00,000/- and issuance of cheque as per Ex.P1 and its dishonour as per Ex.P2 and also issuance of notice by the complainant to the accused as per Ex.P3 were not in dispute. The Court below had failed to give the benefit of presumption under Section 139 of the N.I.Act to the complainant. Learned counsel further submitted that even if it is assumed that the cheque in question was given as a security, still, at the time when the cheque was presented for realisation, the loan was due for its payment. As such, the defence of the accused that the cheque was given as a security is not acceptable. She further submitted that in the absence of cogent materials produced by the accused to show that he has cleared either the entire or part of the loan amount, the defence of the accused that he had repaid a sum of Rs.52,500/- also not acceptable.

5. Learned counsel for the respondent in his brief argument submitted that the cheque was not issued on 21.08.2007 which is the date shown on it, but it was given much earlier to it as a security when the housing loan was taken by the accused. Thus, when the cheque was issued as a security and also considerable amount under the alleged housing loan has already been repaid, thereby reducing the alleged liability much lesser than the alleged cheque amount, the action under Section 138 of the N.I.Act would not sustain.

6. PW1 in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by the complainant in the complaint. Though he has denied a suggestion that the cheque in question was not issued by the accused as a security at the time of availment of the housing loan, but he admitted a suggestion as true that