JUDGMENT :

This appeal is preferred by the appellant challenging the judgment dated 27.08.2012 passed by the Principal Civil Judge and Principal JMFC., Dharwad, in C.C.No.607/2007 acquitting the respondent of the offences punishable under Section 138 of the Negotiable Instruments Act (hereafter referred to as ‘N.I. Act’).

2. The brief facts of the case are that a complaint came to be filed under Section 200 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for short) by complainant against accused stating that complainant and accused are acquainted with each other and accused was a regular customer of complainant who was a dealer in gold & silver articles. During April 2006, the accused purchased gold ornaments worth Rs.2,50,000/-and paid Rs.70,000/-in cash and for the balance amount of Rs.1,80,000/-issued a post dated cheque No.248572 drawn on Syndicate Bank, Vidyagiri Branch, Dharwad dated 10.05.2006. A bond was also given reiterating the promise. When the cheque was presented for payment on 02.08.2006, it returned unpaid. The complainant represented the cheque once again on 01.09.2006, but the cheque came to be dishonored once again and returned along with Banker’s intimation ‘insufficient funds’. Thereafter, complainant got issued statutory notice through RPAD. The same was served on the accused on 03.10.2006. Accused did not repay the cheque amount or replied to the notice, thereby, constraining the complainant to present the complaint.

3. After recording sworn statement of the complainant, the trial Court took cognizance and ordered summons to the accused. On appearance, accused pleaded not guilty and sought trial. On behalf of complainant, two witnesses, namely PW-1 and PW-2 were examined and Exs.P.1 to P.9 were marked. On behalf of accused, DW-1 and DW-2 were examined. No documents were marked. After explaining the incriminating material to accused, his statement under Section 313 of Cr.P.C. was recorded. Thereafter on consideration of evidence available, the trial Court framed the following points for consideration.

“Whether the complainant proves beyond reasonable doubt that the accused had issued the cheque bearing No.248752 dated 10.05.2006 for Rs.1,80,000/- drawn on Syndicate Bank, Vidyagiri Branch, Dharwad in favour of him in lieu of legally recoverable debt payable to him, that it came to be returned for ‘insufficient funds’, intimated to him on 2.09.2006, that whether the accused failed to make the payment of the cheque amount to him in spite of the demand made by him by legal notice dated 30.09.2006 and thereby committed the alleged offence punishable under Section 138 of Negotiable Instruments Act.”

After answering the same in the negative, the trial Court proceeded to acquit the accused. Challenging acquittal, complainant is in appeal.

4. Learned counsel Shri. V.G. Bhat appearing for appellant submitted that the impugned judgment passed by the trial Court is wholly unsustainable as the same is opposed to settled principles of law under N.I.Act. It was submitted that when accused admitted his signature on the cheque and also admitted its issuance to the complainant, legal presumption is available to the complainant under Sections 118 and 139 of the N.I. Act and it was for the accused to establish a probable defence based on cogent evidence.

5. Learned counsel submitted that the defence of accused was to the effect that cheque in question was given as security to a loan transaction between complainant and one Srinivasa Tonapi for a sum of Rs.5,000/-. However, accused failed to lead any evidence in support of said contention. Such being the case, the trial Court gravely erred in placing the onus on the complainant to prove the loan transaction beyond all reasonable doubt, which is totally illegal and arbitrary. It was further contended that accused did not respond to the statutory notice. In the case on hand, in addition to cheque, accused has also executed a bond for the amount mentioned in t