The main legal point established in the judgment is the burden of proof under Section 138 of N.I.Act and the presumption under Section 118 of N.I.Act, which influenced the court's decision in convicting the respondents.

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 respondents, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act'), the learned XVI Addl.Chief Metropolitan Magistrate, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), by the judgment dated 26.05.2010, passed in C.C.No.11342/2009, acquitted the respondents/accused of the said offence. 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 accused Nos.1 and 2 (respondent Nos.1 and 2 herein) have jointly borrowed a hand loan of a sum of Rs. 4 lakhs from him. Towards the repayment of the said loan amount, the accused issued a cheque bearing No.282221, dated 29.1.2009, drawn on Karnataka Bank Ltd., Sarakki Layout Branch, Bengaluru, for a sum of Rs. 4 lakhs. When the complainant presented the cheque to his Banker for realisation, the same came to be dishonoured for the reason of "insufficiency of funds". Thereafter, the complainant demanding the payment of the cheque amount, issued a legal notice to the accused, who did not meet the demand made in the notice, which constrained the complainant to institute a case against them for the offence punishable under Section 138 of N.I.Act in the trial Court.

3. The respondents who were the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-8. On behalf of the accused, accused No.1 was examined as DW-1 and accused No.2 as DW-2 and got marked one document at Ex.D-1.

4. After hearing both side, the trial Court by its impugned judgment dated 26.05.2010, acquitted the accused of the offence punishable under Section 138 of N.I.Act.

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

6. In view of the fact that the learned counsel for both parties 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 14.9.2020, appointed learned counsel Smt.P.V.Kalpana, as Amicus Curiae for the appellant and learned counsel Sri D.Nagaraja Reddy, as Amicus Curiae for the respondent.

7. Heard the arguments of learned Amicus Curiae from both side 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. Learned Amicus Curiae for the appellant in her arguments submitted that the evidence of PW-1 clearly demonstrate that he had the source of income and financial capacity to lend the money. His income from coconut business, chit business and bank balance would clearly show his financial capacity. However, the trial Court only on the ground that he had no financial capacity to lend money, has acquitted the accused of the alleged offence.

Learned Amicus Curiae for the appellant further submitted that, when PW-1 in his cross-examination has stated that he was not in talking terms with the accused since December 2008, then how can it is possible for him to steal the cheque in the year 2009. She also submitted that non-filing of any police complaint by the accused also shows that they had issued the cheque in question to the son-in-law i.e., the complainant for the loan taken by them.

10. Learned Amicus Curiae for the respondents in his brief arguments submits that, admittedly the parties stand in close relationship with each other. By stealing a cheque from the accused, the complainant has presented the same before his Banker and after its dishonour, has filed the case only to harass his close relatives. The evidence led by the parties disclose that the complainant had no financial