The appellant must establish the monetary transaction and discharge the initial burden to raise the presumption under sec. 139 of N.I. Act to succeed in a case under sec. 138 of N.I. Act.

JUDGMENT :

S. Rachaiah, J.

1. This appeal is filed by the complainant/appellant against the impugned judgment and order of acquittal passed in C.C.No.27327/2007 dtd. 27/8/2011 passed by the learned XXII ACMM and XXIV ASCJ, Bangalore, wherein the trial Court acquitted the accused/respondent for the offence under sec. 138 of N.I. Act.

2. Brief facts of the case are as under:-

It is the case of the appellant/complainant that the respondent/accused had borrowed a sum of Rs.4.00 lakhs in the first week of December 2006, promising to repay the same within six months. The Respondent borrowed the loan from the Appellant to extend the class building of the school and to purchase furniture. In lieu of having received the amount from the Appellant, the Respondent has issued a cheque bearing No.232856 dtd. 25/6/2007 for a sum of Rs.4.00 lakhs drawn on Central Bank of India, Kathriguppe, Bengaluru.

3. When the Appellant presented the said cheque through his banker on 5/7/2007, he received a message from the Bank that the cheque had been dishonored, with a shara as "funds insufficient ". The Appellant had issued a legal notice on 3/8/2007 both by RPAD and UCOP. Despite the service of notice, the respondent neither replied nor paid the cheque amount. Hence, the appellant/complainant has lodged the complaint before the trial Court.

4. The trial Court recorded the sworn statement of the Appellant and registered the case as Criminal Case No.27327/2007. After that, the Respondent appeared before the Court on 29/5/2010 and executed the bail bond. The trial Court recorded the Respondent's plea in the open Court and explained to him in the language known to him. The Respondent denied the plea and claimed to be tried.

5. To prove the case, the appellant/complainant had examined himself as PW.1 and also got examined one more witness as PW.2. He got marked Ex.P1 to Ex.P11.

On the other hand, the respondent / accused has examined himself as DW.1, but no documents were marked through him.

6. Heard the learned counsel for the parties.

7. Smt.P.V.Kalpana, learned Amicus Curiae appearing for the Appellant, has vehemently contended that the Respondent has issued a cheque in lieu of the amount borrowed from the complainant/Appellant. The cheque, the signature, and the correction made have been admitted by him during the cross-examination. The trial Court committed an error in not raising the presumption as envisaged under sec. 139 of Negotiable Instruments Act (hereinafter referred to as "N.I. Act ").

8. Learned Amicus Curiae further contended that even though the Respondent denied the transaction with the Appellant, that itself would not be sufficient to rebut the presumption as to how the signed cheque had reached the Appellant. The Respondent contended that he had borrowed a sum of Rs.50,000.00 from the mother-in-law of the Appellant, and he has cleared the amount. In spite of having cleared the amount which he has borrowed from the mother-in-law of the Appellant, it has been misused by the complainant. The cheque in question had been issued for security. The mere allegation about the transaction would not be sufficient to rebut the presumption. Hence, the Respondent is entitled to repay the amount mentioned in Ex.P1 -cheque. As such, learned Amicus Curiae sought to allow the appeal.

Learned Amicus Curiae relied on the judgment of the Hon 'ble Supreme Court in the case of ROHIT BHAI JIVANLAL PATEL VS. STATE OF GUJARAT and ANOTHER, reported in AIR 2019 SC 1876.

9. Per contra, Sri.Leeladhar H.P., learned counsel for the Respondent, submits that the cheque in question had been issued as collateral security to the mother-in-law of the Appellant. The mother-in-law of the Appellant died after the Respondent cleared the loan amount which he had borrowed from her. The cheque had not been returned to the Respondent since she died. Taking advantage of the death of the mother-in-law, the Appellant has filled the cheque for Rs.4.00 lakhs and filed a complaint which the Respon