JUDGMENT :

1. This appeal is filed by the complainant being aggrieved by the order of acquittal passed by the Principal Civil Judge and JMFC, Gokak vide its order dated 02 .05.2016, acquitting the accused for the of fence punishable under Section 138 of the Negotiable Instruments Act, 1881 (herein a after referred to as ‘N .I. Act’ for short).

2. The respondent herein is the accused. The parties herein shall be referred to as per their status in the Trial Court.

3. The complaint came to be filed by the complainant against the accused for recovery of a sum of Rs.14 ,00,000/-. It is the case of the complainant that his father and the accused were known to each other for the last 15 years and the accused was in need of money and requested for loan from the complainant for his business. Accordingly, the complainant has advanced a sum of Rs.14 ,00,000/- as loan in the month of December 2006 for his hotel business and that the accused had agreed to repay the said amount within two months. It is the case of the complainant that during first week of March, he requested the accused to repay the loan amount and accordingly on 03 .04.2007 the accused issued a cheque for Rs.14 ,00,000/- in favour of the complainant which is produced and marked as Ex.P-1 . When the accused presented the cheque for encashment, the same came to be dishonoured on 04.04 .2007 for the reasons o f account closure, pursuant to which the complainant got issued a legal notice on 21.04.2007 which was duly served to the accused on 23.04 .2007 and that the accused has not repaid the amount and neither he has replied to the legal notice. Hence, the complainant filed the present complaint against the accused.

4. After service of summons from the Trial Court, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. Thereafter, the parties went into trial be fore the learned Magistrate and the complainant got examined P.Ws.1 to 4 and got marked Exs.P-1 to P-9. The accused got examined himself as sole witness and got marked Exs.D-1 and D-2. The complainant examined himself as P.W.1 and he was subjected to cross-examination.

5. It is the de fence taken by the accused that he does not know the complainant. He has no business transactions with the complainant and that the alleged cotton business which is alleged by the complainant was closed down and so also the hotel business for which the complainant alleges that he has given the loan, was also closed in the year 2007. The accused has also taken his defence that he has closed this particular account through which Ex.P1 – cheque is issued in the year 2005. Further the accused has taken the de fence that there is no written document or agreement between the complainant and the accused for having lent huge amount of Rs.14 ,00,000/-. Further it is the case of the accused that the father of the complainant has taken away the cheque from the office o f the accused which he came to know only after he was served with the summons from the Trial Court.

6. It is the specific case of the accused that he has never given cheque to the complainant or his father. After giving instructions to the Bank to close the account, he has returned the remaining cheque leaves to the Bank. The accused has also taken a plea that he has not received the legal notice and accordingly, the service of notice is not proper and therefore , the complaint is liable for dismissal and the accused is to be acquitted on that ground. After recording o f the statement under Section 313 of Cr.P.C., the accused also stepped into the witness box and led in his evidence contending the same as stated supra. The accused also stated that the complainant does not have the capacity to pay the amount as alleged in the complaint and that there is no legal debt or liability as against the complainant. After going through the material evidence and the documents, the learned Magistrate acquitted the accused f