JUDGMENT :

The appellant herein is the complainant before the learned II Additional Judicial Magistrate at Sirsi (hereinafter referred to as ‘Trial Court’ for the sake of brevity) is assailing the impugned Judgment of acquittal dated 10.01.2011 passed in Criminal Appeal No.73/2009 on the file of the Fast Track Court of Sirsi (hereinafter referred to as the ‘Appellate Court’ for the sake of brevity), whereunder the respondent/accused is acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as ‘the N.I.Act’ for the sake of brevity) by setting aside the Judgment of conviction and order of sentence dated 07.05.2009 passed in Criminal Case No.328/2007 by the Trial Court convicting the accused for the said offence sentencing him to undergo simple imprisonment for a period of 3 months and to pay fine of Rs.3,000/-and in default to pay fine undergo simple imprisonment for a period of one month for the offence punishable under Section 138 of the N.I.Act.

2. Brief facts of the case are that, the appellant herein as complainant filed the Private Complaint in PCR No.80/2006 before the Trial Court against the accused alleging commission of the offence punishable under Section 138 of the N.I.Act. It is stated that the complainant is the owner of the Petrol Bunk named as ‘Uma Shankar Auto Fuels’. The accused was running a transport business and he used to purchase diesel for his trucks from the complainant. Thus, the accused purchased fuel worth Rs.15,000/-. Complainant demanded payment of the amount and the accused issued the cheque dated 13.12.2005 for Rs.15,000/-drawn on Basaveshwar Co-operative Credit Society Limited, Sirsi (for short the ‘Society’) infavour of the Uma Shankar Auto Fuels, Sirsi, of which the complainant is the Proprietor. The said cheque was presented for encashment, but the same was dishonoured as there was ‘insufficient fund’ in the account of the accused. The complainant issued legal notice informing the accused regarding dishonour of the cheque and calling upon him to pay the cheque amount. But the legal notice was returned as ‘not claimed’. The accused has not claimed the notice knowing fully well that the cheque in question is dishonoured and he has committed the offence punishable under Section 138 of the N.I.Act. Thus, the complainant requested the Trial Court to take cognizance of the offence and to summon the accused.

3. The Trial Court took cognizance of the offence against the accused and registered Criminal Case No.328/2007 against the accused for the offence punishable under Section 138 of the N.I.Act. The accused appeared before the Trial Court and pleaded not guilty for the said offence. The complainant examined himself as PW.1 and got marked Exs.P1 to P5 in support of his contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. and examined himself as DW-1 and got marked Exs.D1 to D3 in support of his contention. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant is successful in proving the guilt of the accused for the offence punishable under Section 138 of the N.I. Act and proceeded to convict and sentence him as stated above.

4. Being aggrieved by the Judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred Criminal Appeal No.73/2009 before the Appellate Court. The Appellate Court after taking into consideration all these materials on record, came to the conclusion that the complainant has not proved the guilt of the accused beyond reasonable doubt and therefore allowed the appeal and set aside the impugned Judgment of conviction and order of sentence passed by the Trial Court. Being aggrieved by the acquittal of the accused, the complainant as appellant is impugning the Judgment of acquittal.

5. Heard Sri Vishwanath Hegde, learned counsel for the appella