JUDGMENT :

This appeal lays challenge to the Judgment of acquittal passed by the learned I Addl. Civil Judge (Jr.Dn.) & JMFC-II Bidar (hereinafter referred for short as Trial Court) in C.C. No.826/2008 dated: 01-02-2016 for the offence punishable under Section 138 of Negotiable Instrument Act 1881.

2. The appellant was the complainant and the respondent was the accused before the trial court. For the purpose of convenience the appellant and respondent will be referred as complainant and accused as per their respective ranks before the trial court in this Judgment.

3. The appellant/complainant filed complaint under section 200 of Code of Criminal Procedure before the J.M.F.C Court alleging that, the accused has committed an offence punishable under section 138 of Negotiable Instrument Act 1881 (Hereinafter referred for short as "N.I Act".)

4. It is the case of the complainant that, the complainant is co-operative Bank involved in Banking business. The accused is a member of complainant- Bank and availed loan from the Bank, but failed to repay the same. When the complainant-Bank approached accused and insisted for payment of dues, he issued cheque bearing No.022627 dated: 24-05-2007 for Rs.3,28,000/- drawn in favour of the Bank. The said cheque was presented through its banker D.C.C Bank Bidar, but it was returned dishonoured with endorsement that funds "insufficient". An intimation in this regard was received on 10-07-2007. Then the complainant-Bank issued demand notice on 30-07- 2007. The accused did *neither replied the aforesaid notice, nor repaid the amount. Hence the complaint was lodged.

5. The accused appeared before the trial court. The trial court put the substance of accusation to accused and recorded the plea of accused. The accused pleaded not guilty and claimed to be tried.

6. The complainant-Bank got examined its Manager Mr. Kalyan Rao Malge as PW.1 and also got examined another witness as PW.2 and got marked five documents as per Ex.P.1 to Ex.P.05 and closed its side evidence.

7. The statement of accused as required U/sec.313 of Code of Criminal Procedure was recorded. The accused denied the incriminating circumstances appearing in the evidence of prosecution witnesses. The accused got examined himself as DW.1, produced two documents as Ex.D.1 & Ex.D.2 and closed his side evidence.

8. After hearing arguments, the learned trial court acquitted the accused for the offence punishable under Section 138 of N.I Act.

9. Aggrieved by the said acquittal, the appellant/complainant has preferred this appeal on the following grounds:--

(a) that the trial court has not properly appreciated the oral and documentary evidence produced by the complainant in proper perspective.

(b) the trial court has considered only some technical *defence taken by the accused and acquitted him which is not correct. The accused has admitted that his father had taken loan of Rs.1,50,000/- and accused issued cheque along with interest for Rs.3,20,000/-.

(c) the issuance of cheque and signature are not disputed.

(d) Once the accused admitted the liability of his father to repay the loan amount with interest then he is liable to pay the amount.

(e) the death of father of the accused has no consequence in view of section 25(3) of Indian Contract Act, *1872 the issuance of cheque by the accused saved Limitation for the recovery proceedings by the complainant-Bank.

(f) the trial court has wrongly came to the conclusion that though the legal notice *was issued to all the legal heirs, but the case is filed only against this accused. The service of said notice is not disputed. The ingredients of section 138 of N.I Act are quite independent once having admitted issuance of cheque, there is a presumption under section 139 of the N.I Act. The learned trial court Judge has committed grave error in acquitting the accused without considering the said aspect.

With these main grounds the complainant has prayed to set aside the Judgment of acquittal and convict the accused.

10. He