The main legal point established in the judgment is the burden of proof on the complainant to establish the authenticity of the accused's signature on the dishonored cheque and the liability of the accused under Sec. 138 of the Negotiable Instruments Act.

JUDGMENT :

1. This appeal is by the complainant against the Judgment and Order of acquittal dtd. 23/4/2019 passed in C.C. No.26420/2017, on the file of the Court of XXII Addl. C.M.M., Bengaluru, acquitting the accused for an offence punishable under Sec. 138 of the Negotiable Instruments Act.

2. Heard both side and perused the material on record.

3. The case of the complainant is that, accused is running a business in the name and style of M.R. Enterprises and she is the Proprietor and Director. She was selling mobile phones, mobile spare parts, sim-cards etc. The complainant was working with the accused in her office situated at Chandra Layout, Bengaluru and both are friends. The accused requested the complainant to become a partner in the said enterprises and believing her words, the complainant invested a sum of Rs.7.00 lakhs in the last week of September 2016. However, the accused did not induct the complainant as a partner in the business, instead stated that the business is running under loss. The accused also assured that the amount will be settled within 6 months and after the said period, a cheque bearing No.076374 dtd. 21/6/2017 drawn on Axis Bank, Nagarabhavi Branch, Bengaluru, was issued to the complainant for a sum of Rs.7.00 lakhs towards repayment of the money invested by him, with a promise that on presentation of the said cheque, the same will be honoured.

4. The complainant presented the cheque to his banker i.e., Kotak Mahindra Bank, Banashankari Branch, Bengalur and the said cheque came to be dishonoured on 11/9/2017 for the reason 'drawers signature differ'. Thereafter, the complainant informed the same to the accused and requested her to return the amount however, the accused failed to return the amount, as such with no other alternate remedy, he issued a legal notice on 9/10/2017 by way of RPAD. In spite of service of the said notice on the accused on 10/10/2017, she failed to reply to the said legal notice and repay the amount within the stipulated time and therefore, committed an offence under Sec. 138 of the N.I. Act.

5. The complainant got himself examined as P.W.1 and got marked Exs.P1 to 5. The accused got examined herself as D.W.1 and marked Exs.D1 and 2.

6. The trial Court considering the oral and documentary evidence on record, acquitted the accused by its Judgment and Order dtd. 23/4/2019 passed in C.C. No.26420/2017.

7. The learned counsel for the appellant has contended that the entire approach of the trial Court for acquitting the accused and the reasons assigned for acquittal are not in accordance with law. He has contended that the trial Court has made much about the admission given by the complainant that he does not remember the cheque number as well as the bank. He contends that even though the complainant has been able to mark the relevant documents including the cheque in possession which is signed by the accused, the trial Court has erroneously acquitted the accused holding that he has not at all paid a sum of Rs.7.00 lakhs to the accused and he has also failed to examine his sister and friend to establish the fact that the amount was paid to the accused. It is his further contention that the cheque in question admittedly belong to the accused and the said cheque was dishonoured by the bank and therefore, there is a legal presumption available in favour of the complainant. He contends that the accused is in the habit of putting different signatures to different documents and therefore the endorsement issued by the bank should not have been made a ground for acquitting the accused. He contends that the accused has not replied to the legal notice and therefore, she has not rebutted the presumption in favour of the complainant.

8. The learned counsel for the respondent has contended that the complainant was working in M.R.Enterprises, which was run by the accused. He submits that at no point of time, the accused had requested the complainant to join the said firm as a partner and received a sum