The burden of proof lies with the complainant to establish the transaction and legal recoverable debt, and the defense raised by the accused must be considered probable to rebut the presumption under Section 139 of the Negotiable Instruments Act.

JUDGMENT :

Bellunke A.S. J.

This is an appeal filed by the complainant against the judgment and order of acquittal passed by the Civil Judge and JMFC, Badami in Criminal Case No.408/2005 by order dated 20.05.2010. Wherein, the accused came to be acquitted for the offence punishable under Section 138 of N.I. Act.

2. Brief facts of the case are :

According to the complainant the accused is known person to him. Therefore, on request of the accused, the complainant has advanced a sum of Rs.1,50,000/- in the month of June-2004, which is repayable on demand. To discharge the said loan amount, the accused has issued a cheque bearing No.196750, dated 20.01.2005 in favour of the complainant drawn on Corporation Bank, Bagalkot for a sum of Rs.1,50,000/-. Thereafter, the complainant presented the said cheque for encashment with his banker i.e., B.D.C.C. Bank, Badami Branch on 20.01.2005, but the said cheque was returned as unpaid with an endorsement "insufficient funds" on the same day. Therefore, the complainant issued a legal notice to the accused on 12.02.2005. The said notice was duly served on respondent. Since no reply was sent, therefore a private complaint under Section 200 of Criminal Procedure Code r/w 142 of Negotiable Instruments Act was filed against the accused for the offence punishable under Section 138A of N.I. Act.

3. The learned Magistrate took the cognizance of the offence alleged. Sworn statement of the complainant was recorded. On the basis of material perused before the learned Magistrate a Criminal Case No.408/2005 for the offence punishable under Section 138 of N.I. Act was registered. The presence of the accused secured. Plea was recorded. Thereafter, the learned JMFC hold the trial of the case.

4. On the basis of the material evidence and documentary evidence available on record, the learned Magistrate accepted the defence raised by the accused and held that the guilt of the accused is not proved beyond any reasonable doubt. Hence, the Court acquitted the accused by the impugned judgment and order. The said judgment has been challenged by the appellant on the following grounds:

1. The court below has not considered the evidence on record in proper perspective and failed to appreciate the evidence on record thereby caused miscarriage of Justice. The Judgment of the court below is illegal.

2. The trial Court has not assigned proper reasons and failed to appreciate the documents on record and came to a wrong conclusion and held that complainant failed to prove the transaction with the accused and failed to prove the legal recoverable debt.

3. The trial Court failed to consider the presumption as provided under Section 139 of the Negotiable Instruments Act. Explanation offered by the complainant as to why the document was not taken for the transaction in question, is not at all considered by the trial Court.

4. The Trial Court wrongly placed burden on the complainant to prove the case.

5. The trial court committed error in holding the complainant is no capacity to pay the amount. The accused has sufficient capacity to lend the money. He has sold the ground nut and out of that amount, he has paid the amount.

6. The issuance of cheque, signature of the accused, dishonorable of cheque are all not denied. The cheque could have been presented by anybody as deposed by PW1. Therefore, merely because the cheque received back by one witness by name Kanavi will not, the bank will not discharge all the liability of the accused towards banker.

7. The accused had not replied the notice of the appellant. The cheque has not issued in favour of Basavanneppa Kanavi. He has only collected the cheque from the Banker.

5. The learned counsel for the appellant has vehemently reiterated the grounds of appeal during the arguments. There is no evidence to show that that the cheque issued in favour of third person, has may be misused. The cheque was presented by the complainant himself to the banker after its dishonour. It was received by another person