JUDGMENT :

B.A. PATIL, J.

1. The present appeal has been preferred by the appellant/complainant challenging the judgment of acquittal passed by the Court of XIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C. No. 17653/2017 dated 14.02.2019.

2. I have heard the learned counsel for the appellant and the learned counsel for the respondent.

3. Though this case is listed for admission, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.

4. The case of the complainant in brief is that during the month of May-2016 for business activities, accused approached and offered to sell the property bearing No.74G/8/465 formed in Sy. No.46/2 situated at Vajarahalli, Kasaba Hobli, Nelamangala Taluk. The complainant agreed to purchase for a total consideration of Rs. 10,00,000/- and an agreement was also entered into in this behalf. Immediately, complainant arranged an amount of Rs.8,00,000/- and he has paid another sums of Rs.4,25,000/-, Rs.2,00,000/-, Rs. 1,75,000/- respectively. Accused failed to perform and execute the sale deed and requested the complainant not to go for litigation. Finally, the settlement has been arrived and he has issued a cheque bearing No.827211 dated 21.04.2017for a sum of Rs. 10,88,000/- drawn on Indian Bank. When the said cheque was presented for encashment through the banker of the complainant, the same was returned with an endorsement as Drawers' signature differs. Intimated the same to the accused and he gave a vague answer. Hence, the complainant caused legal notice dated 28.04.2017. But in-spite of service of notice, accused did not give reply and has not paid the amount as such, the complaint was filed.

5. Learned Magistrate took cognizance and secured the presence of the accused and also his plea was recorded. The accused/complainant got examined himself as PW.1 and got marked 20 documents and thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. Accused got examined himself as DW.1 and got marked Ex.D1. Thereafter, after hearing the learned counsel appearing for both the parties, the trial Court dismissed the complaint by acquitting the accused. Challenging the legality and correctness of the judgment, the complainant is before this Court.

6. It is the submission of the learned counsel for the appellant that the judgment of acquittal passed by the trial Court is contrary to law, facts and materials placed on record. It is his further submission that the earlier agreement entered into between the parties for selling the property and receiving the consideration is admitted. Even the signature on Ex.P1 is also admitted by the accused, under such circumstance, the trial Court ought to have drawn the presumption as contemplated under Sections 118 and 139 of the Negotiable Instruments Act, 1881 (hereinafter referred as "the Act"). Thereafter, the accused has to rebut the said presumption on preponderance of probabilities. Without looking into the said legal aspect, the trial Court has passed a cryptic order holding that the accused has proved his case and the contents of the complaint indicates that a civil suit will lie. The said observation itself is not in accordance with law. It is his further submission that all the factual matrix have been narrated in the notice and notice has been served on the respondent - accused but he has not given any reply and non giving of the reply itself, is going to accept the case of the complainant. When he has failed to perform the specific performance and has agreed to return the amount, under such circumstance, the trial Court ought to have convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned order and to convict the accused.

7. Per contra, learned counsel appearing on behalf of the respondent vehemently argued and submitted that the transaction between the complainant and the accused is not a legal transaction and the said documents have