The main legal point established in the judgment is that the presumption under Section 139 of the N.I.Act is rebuttable, and the complainant must prove the existence of a legally enforceable debt. Additionally, valid service of notice is crucial for establishing the offence under Section 138 of the N.I.Act.

JUDGMENT

H.B.Prabhakara Sastry, J. - In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, 1973, 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 XVIII Addl.Chief Metropolitan Magistrate & XX Addl.Small Causes Judge, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), by the judgment dated 27.09.2008, passed in C.C.No.30452/2006, convicted the accused for the said offence and sentenced him accordingly.

Aggrieved by the same, the accused preferred an appeal before the learned Presiding Officer, City Fast Track (Sessions) Court, Bengaluru City (F.T.C.No.VI), (hereinafter for brevity referred to as 'Fast Track Court'), in Criminal Appeal No.847/2008, which by its judgment dated 06.07.2010, while allowing the appeal and setting aside the judgment passed by the trial Court, acquitted the accused of the offence punishable under Section 138 of N.I.Act. Being aggrieved by the same, the complainant/appellant has preferred the present appeal.

2. The summary of the case of the complainant in the trial Court is that, the accused being known to him for the past several years, availed a loan of a sum of Rs. 4,50,000/- from him in cash on 15.2.2006 to set right his domestic and business problem. After receiving a hand loan, the accused had issued two cheques bearing No.687570, dated 15.7.2006, for a sum of Rs. 1,00,000/- and a cheque bearing No.687526, dated 30.7.2006, for a sum of Rs. 3,50,000/-, both drawn on UCO Bank, Peenya Industrial Estate Branch, Bengaluru, in favour of the complainant. When the complainant presented both the cheques, they returned dishonoured with the Banker's endorsement as 'funds insufficient', on 8.8.2006. Thereafter, the complainant got issued a legal notice dated 14.8.2006 to the accused through Registered Post Acknowledgement Due and under Certificate of Posting calling upon the accused to pay the cheque amount within fifteen days from the date of receipt of the notice. The notice sent through Registered Post Acknowledgement Due was returned unserved to the sendor on 31.8.2006 with the shara 'intimation delivered and not claimed'. This constrained the complainant to institute a criminal case in the trial Court against the accused for the offence punishable under Section 138 of N.I.Act.

3. The respondent who was the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant examined himself as PW-1 and got marked documents from Exs.P-1 to P-12. The accused got himself examined as DW-1 and other two witnesses as DW-2 and DW-3 and got marked documents from Exs.D-1 to D-10.

4. After hearing both side, the trial Court by its impugned judgment dated 27.09.2008, convicted the accused for the offence punishable under Section 138 of N.I.Act, however, in the appeal, the Fast Track Court acquitted the accused of the said offence.

5. The trial Court and Fast Track Court's records were called for and the same are placed before this Court.

6. In view of the fact that the learned counsel for the appellant failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was ten years old appeal, this Court by its order dated 10.9.2020, appointed learned counsel Dr.J.S.Halasetti, as Amicus Curiae for the appellant.

7. Heard the arguments of learned Amicus Curiae for the appellant and the learned counsel for the respondent and perused the materials placed before this Court.

8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.

9. After hearing, the points that arise for my consideration are :

1) Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint?

2) Whether the judgme