ORDER :

This appeal is directed against the judgment of acquittal dated 2.11.2016 rendered by the XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.24342/2015 whereby the complaint filed by the appellant (hereinafter referred to as complainant) has been dismissed and the respondent herein (hereinafter referred to as accused) is acquitted of the offence punishable under Section 138 of the N.I. Act.

2. Heard learned counsel for the appellant/complainant and learned counsel for the respondent/accused and perused the records.

3. Brief facts of the case are as follows :

The complainant initiated action against the accused under Section 138 of N.I. Act on the allegation that the accused approached the complainant in the month of April, 2012 requesting for a loan of Rs.1,50,000/- to meet his financial commitments and to promote his business and again in the month of October, 2012 requesting a sum of Rs.1,50,000/and again, in the month of February, 2013 for Rs.1,00,000/and accordingly, the complainant paid a total sum of Rs.4,00,000/to the accused in cash. The accused promised to return the amount within May, 2015. Since he did not keep up his promise, the complainant approached the accused and at that time, the accused issued a cheque bearing No.797412 dated 12.8.2015 drawn on State Bank of India, Vijayanagara Branch, Bangalore, for Rs.4,00,000/. The said cheque when presented for encashment was returned with a shara ‘account closed’. The complainant issued a notice demanding payment of the cheque amount. Notice sent to the accused though was served, the accused did not comply with the demand and hence, the complainant sought prosecution of the accused.

3.2. The accused denied the charge and faced trial. In order to substantiate his case, the complainant examined himself as PW1 and produced in evidence 8 documents marked as exhibits P1 to P8. The original cheque was marked as Ex.P1, copy of the legal notice as Ex.P3, bank statement of the complainant as Ex.P8. In rebuttal, the accused examined himself as DW1 and produced in evidence 14 documents marked as exhibits D1 to D14.

3.3. Considering the said material, by the impugned judgment, the trial Court dismissed the complaint and acquitted the accused. The trial Court was of the opinion that the complainant failed to prove that she had sufficient funds at her credit as on the date of the alleged transaction and that the complainant failed to establish that the cheque in question was issued by the accused towards discharge of debt or liability due by the accused and with this reasonings, the trial Court dismissed the complaint and acquitted the accused.

4. The learned counsel appearing for the complainant submits that the finding recorded by the trial Court are contrary to the material on record. In support of her financial capacity, the complainant has produced Ex.P8-bank statement which discloses that at the relevant time, the complainant had withdrawn substantial amount from her S.B account. The accused himself has admitted in his evidence that the cheque in question was signed and issued by him to the complainant at her house. The defence taken up by the accused is not probable. According to the accused he came to know about the loss of the subject cheques in the month of February, 2015 whereas, the account was closed only in the month of July 2015. Even in the said notice, there was no mention that on account of loss of cheque, the account was sought to be closed. These circumstances indicate that the alleged defence set up by the accused is an afterthought. Without considering any of these aspects, the trial Court dismissed the complaint, which in the circumstance of the case has led to miscarriage of justice, and thus sought to interfere with the impugned judgment.

5. Learned counsel appearing for the accused however argued in support of the impugned judgment contending that the learned Magistrate has considered every aspects of the case and on perusal of the bank stat