JUDGMENT :

This appeal lays challenge to the judgment of acquittal passed in C.C.No.2088/2012 dated 11.03.2014 by the IV Addl. Civil Judge and JMFC Court, Gulbarga.

2. The appellant was the complainant and respondent was the accused before the Trial Court. They will be referred as complainant and accused as per their respective ranks before the Trial Court for convenience in this judgment.

3. The brief case of the complainant before the Trial Court was that, the complainant and accused are conversant to each other. They are good friends. It is further case of the complainant that on 15.07.2011 accused approached the complainant in respect of hand-loan of Rs.9,80,000/-for his business needs and other necessities. In view of good relationship, complainant advanced the loan on assurance of the accused that he will repay the loan within a month. But the accused did not return the amount inspite of repeated request. Then the accused issued a cheque dated 21.11.2011 bearing No.339579 of State Bank of Hyderabad, Super Market, Gulbarga for a sum of Rs.9,80,000/-to the complainant in discharge of said debt or loan. The complainant presented the said cheque for collection to bank, but it was returned dishonoured with a endorsement as "funds insufficient". On the request of accused the cheque was again presented on 07.12.2011. But again the said cheque was returned dishonored for very same reason.

4. The accused did not give proper answer to complainant in this regard, hence complainant issued legal notice dated 21.12.2011, which was returned with endorsement that the notice was refused. Therefore, complainant filed compliant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (Hereinafter for short referred as "N.I.Act".).

5. The accused appeared. After recording plea of the accused, the complainant got examined himself as PW.1 and one witness was examined on his behalf as PW.2. He got marked seven documents as Exs.P.1 to 7. After recording 313 Cr.P.C. statement the accused gave a defence evidence of himself as DW.1 and got examined one witness on his behalf as DW.2, but no documents were marked on his behalf.

6. After hearing both the sides, the learned IV Addl. Civil Judge and JMFC Court, Gulbarga acquitted the accused. Aggrieved by the same this appeal is filed on the following grounds:-

(a) That the impugned judgment of the Trial Court is not sustainable and liable to be set-aside.

(b) The accused has not led evidence to discharge the presumption in favour of complainant.

(c) The defence of the accused was not probable.

(d) The Trial Court failed to consider the presumption under Sections 139 and 118 of "N.I. Act".

(e) No evidence is adduced to probabalise the defence.

(f) The Trial Court has not properly appreciated the decisions referred.

With these main contentions the appellant has prayed to allow the appeal.

7. Heard Sri. A. Vijaykumar, learned counsel for the appellant and Sri. Faizuddin K. Zardi, advocate for learned counsel for the respondent.

8. The learned counsel for the appellant submitted that issuance of cheque and signature on cheque is not denied by the accused. Presumption under Negotiable Instruments Act is available to complainant. The presumption is not rebutted by the accused either in the cross-examination or in the defence evidence. The defence of the accused is that there was no legally enforceable debt, the source of amount is not proved, cheque is given as a security for chitt transaction, repaid the entire amount, but cheque not returned back. The learned counsel argued that no documents were produced to show that complainant was running any chitt business or chitt transaction with accused. In the cross-examination of PW.1 there is a suggestion regarding purchasing of plot by complainant that itself shows the income and the capacity of the complainant to lend the loan. Misuse of cheque defence is not proved. Stop payment notice was not given. Notice was sent to the addres