The validity of a cheque under Section 138 of the Negotiable Instrument Act is crucial for initiating legal proceedings.

JUDGMENT :

B.A. Patil, J.

The present appeal has been preferred by the appellant/complainant being aggrieved by the judgment of acquittal passed by the II Addl. Civil Judge and JMFC, Belagavi in C.C.No.1977/2009 dated 14.10.2010.

2. I have heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused.

3. The gist of the complaint as per the case of the complainant is that, in the month of August 2003, accused approached him for hand loan of Rs.50,000/- for filling tender of Air Force Station, Sambra. The complainant gave loan of Rs.40,000/- i.e., Rs.30,000/- by way of cash and Rs.10,000/- by cheque. It is further case of the complainant that the complainant was dealing with dress materials. Accused purchased dress material worth Rs.35,000/- and as on the date, the accused was owing a debt of Rs.75,000/- to the complainant. In the month of January, 2005, accused repaid Rs.10,000/- to the complainant by issuing a demand draft, but failed to repay the remaining amount of Rs.65,000/- and on 05.07.2005, accused issued cheque bearing No.140314 for a sum of Rs.65,000/- drawn on Union Bank of India, Kadolkar Galli, Belagavi. When the said cheque was presented for collection through the Canara Bank, the said cheque was dishonoured on 16.01.2006 with the shara 'insufficient funds'. The said fact was brought to the notice of the accused, in spite of which the accused did not pay the cheque amount. Notice was served on accused on 15.02.2006. In spite of service of notice, accused did not pay and as such, a complaint was filed under Section 138 of N.I. Act. Thereafter the Court below took cognizance and secured the presence of the accused. Thereafter the complainant came to be examined as PW1 and got marked Exs. P1 to P8 and thereafter accused came to be examined as DW1 and got marked Exs.D1 to D12. After hearing the learned counsel, the complaint filed came to be dismissed. Being aggrieved by the same, the complainant is before this Court.

4. It is the submission of the learned counsel for the appellant/complainant that the Court below without considering the facts and circumstances of the case has come to a wrong conclusion and has falsely dismissed the complaint. It is his further contention that, in the evidence of the accused, she has admitted the fact that she has issued the cheque, but the said cheque has been issued when a criminal complaint was pending as against her filed by the sister of the complainant. It is his further contention that the Court below has come to a wrong conclusion that there was no legally recoverable debt and even though the cheque at Ex.P1 was containing the date 05.07.2005, only because a dot has been found in the cheque, it has doubted the case of the complainant and ultimately dismissed the same. There are no good grounds to dismiss the complaint. On these grounds he prayed to allow the petition and to convict the accused in accordance with law.

5. Per contra, the learned counsel appearing on behalf of the respondent/accused vehemently argued and submitted that the complainant was dealing with readymade cloth materials. During the year 2003, she purchased cloths and she repaid Rs.10,000/- by demand draft and the complainant by using the influence, filed the complaint and at that time by threatening, they have taken the cheque and subsequently the said complaint was dismissed and the present complaint has been filed for not paying the said amount.

6. It is his further contention that there is a manipulation of the cheque, that itself creates a doubt in the case of the complainant. Even though, there is a legal defect in issuing the demand notice by the complainant, the trial Court after considering the material facts and circumstances has come to a right conclusion and there are no good grounds to allow the appeal and prays to dismiss the appeal.

7. I have carefully and cautiously gone through the submission made by the learned counsel for the parties and perused the r