Point of Law: Absence of rebuttal evidence under Section 138 of Negotiable Instruments Act, Trial Court ought to have convicted the accused for the offence punishable under Section 138 of Negotiable Instrument Act. Hence Court below has not appreciated the evidence available on record in a proper perspective.

JUDGMENT :

H.P. Sandesh, J.

This appeal is filed against the judgment of acquittal passed in Criminal Case No. 33 of 2016 dated 08.11.2016 on the file of Senior Civil Judge and J.M.F.C. at Harihar for the offence punishable under Section 138 of Negotiable Instruments Act.

2. Brief facts of the case:

It is the case of the appellant/complainant that himself and accused were known to each other. The accused was doing hotel business. The accused has requested a hand loan of Rs. 4,50,000/- for his hotel business and accordingly, the complainant advanced Rs. 4,50,000/- on 10.11.2006. The accused had agreed to repay the loan amount within two months with interest at the rate of 2% per month. Thereafter, towards repayment, the accused has issued a cheque for a sum of Rs. 4,50,000/-. When the same was presented for encashment, the same was returned with an endorsement, insufficient funds. Hence, the complainant got issued the legal notice on 18.01.2007 calling upon the accused to pay the amount. Despite service of notice, he did not pay the amount and also did not give any reply. Hence, the complaint was filed.

3. The complainant, in order to substantiate his case, examined himself as P.W. 1 and so also examined two witnesses as P.Ws. 2 and 3 and got marked the documents as Exs. P1 to P8. The accused examined himself as D.W. 1 and got marked the documents as Exs. D1 to D4. After closure of the evidence, the Court below has acquitted the accused. Hence, the present appeal is filed.

4. The contention of the appellant/complainant in the appeal is that the Court below has committed an error in not appreciating the evidence in a proper perspective and erroneously has come to the conclusion that he has not proved the transaction. The accused did not dispute the cheque and in the cross-examination also, he admitted the cheque and the Court below has failed to consider the same and committed an error in dismissing the complaint.

5. When this matter was listed yesterday, learned counsel for the respondent was absent. Hence, I have heard the arguments of learned counsel for the appellant. However, in order to provide an opportunity to the respondent, the matter was adjourned to today. Even today also, learned counsel for the respondent is absent. Hence, it is deemed that there is no arguments on behalf of the respondent.

6. Having heard the arguments of learned counsel for the appellant and also on perusal of the material available on record, the points that arise for consideration are:

1. Whether the Court below has committed an error in acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act?

2. What order?

Point Nos. 1 and 2:

7. The factual matrix of the case is that, the respondent/accused has taken a hand loan of Rs. 4,50,000/- from the complainant for his hotel business and he also agreed to repay the same with interest at the rate of 2% per month. However, he failed to repay the same with interest and hence, legal notice was issued. In spite of service of legal notice, the respondent/accused did not give any reply. Hence, the complaint was filed.

8. The complainant, in order to substantiate his case examined himself as P.W. 1 and two other witnesses as P.Ws. 2 and 3 and got marked Exs. P1 to P8. The complainant in his evidence reiterates that after the cheque was returned, a legal notice was issued in terms of Ex. P3 and the same was acknowledged by the accused in terms of Ex. P4. The notice was also sent through the Certificate of Posting in terms of Ex. P6. The complainant in his evidence reiterates the contents of the complaint. He was subjected to cross-examination.

In the cross-examination, it is elicited with regard to the earlier transaction between the complainant and the accused. It is elicited with regard to issuance of the notice earlier for non-payment of Rs. 1,00,000/-. He also admits that while advancing an amount of Rs. 1,00,000/-, he did not collect any document from the accused. It is suggest