Point of Law : When the accused was under financial constraints, the loan was taken and not disputed the fact that the cheque was given in 2004. Though contended that date of cheque has not been mentioned, the date of cheque is specific on the cheque.

JUDGMENT :

H.P. SANDESH, J.

1. This appeal is filed praying this Court to set aside the judgment of acquittal dated 06.07.2010 passed in Crl. Appeal No. 470/2009, on the file of the Presiding Officer, Fast Track Court-II, Bangalore and to confirm the order dated 27.05.2009 passed in C.C. No. 17229/2004, on the file of the XXII ACMM and XXIV ASCJ, Bangalore, for the offence punishable under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short).

2. The factual matrix of the case is that the complainant/appellant herein had filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the NI Act alleging that the accused/respondent had availed hand loan of Rs. 5,00,000/- and in turn, on demand gave the subject matter of the cheque and when the same was presented, it was dishonoured for want of sufficient funds. Hence, the complaint was filed. The complainant and the accused have led their evidence before the Trial Court and the Trial Court after considering the material on record, convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced her to pay Rs. 6,00,000/-. Being aggrieved by the same, the accused filed an appeal before the Appellate Court and the Appellate Court reversed the finding of the Trial Court and acquitted the accused. Hence, the present appeal is filed by the complainant before this Court.

3. The learned counsel for the appellant in his arguments vehemently contend that the Appellate Court has given the finding while reversing the finding of the Trial Court that the complainant admitted that the son of the accused is looking after the business after the death of his father. Hence, the accused seeking the financial help does not arise. The other ground for reversal of the judgment is that the date of loan transaction is not specified. The complainant has also not produced the documents for having source of Rs. 5,00,000/- and no other loan documents are produced before the Trial Court. The defence of the accused before the Trial Court is that she lost the cheque. The learned counsel in his argument vehemently contend that the reasoning given by the Appellate Court is erroneous. It is admitted that the complaint was given after service of notice and DW-1 in the cross-examination categorically admitted financial problems and constraints. Though, the accused denied the address, but admitted in the cross-examination and both the Trial Court and the Appellate Court have come to the conclusion that notice against the accused is served, inspite of no reply was given to the notice. When such being the case, the Appellate Court ought to have drawn the presumption in favour of the complainant and instead of the reasons was given they are not acceptable. The accused has not disputed the signature available on the cheque. Hence, it requires interference of this Court.

4. The learned counsel for the appellant in support of his arguments relied upon the judgment of the Apex Court in the case of N. Harihara Krishnan vs. J. Thomas, AIR 2017 SC 4125. Referring this judgment, the learned counsel would vehemently contend that the plea of payee that he was unaware of fact that cheque drawn on account and name of Company and no sufficient reason advanced by payee for condoning such delay, cannot be a ground and the said contention cannot be accepted.

5. The learned counsel also relied upon the judgment of the Apex Court in the case of Uttam Ram vs. Devinder Singh Hudan and Another, (2019) 10 SCC 287. Referring this judgment, the learned counsel brought to the notice of this Court that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. The defence that cheque book was lost/stolen or that cheque was misused was completely without basis. The acquittal judgment was reversed and directed the accused to pay twice of the amount of cheque as fine and cost of