The judgment established the principle that the presumption of debt and liability under Sec. 139 of N.I. Act can only be rebutted by probabalising a defence, and the standard of proof required is preponderance of probabilities.

JUDGMENT :

1. The appellant/complainant preferred this appeal aggrieved by the impugned judgment of acquittal dtd. 17/10/2011 passed in C.C.No.622/2006 on the file of the learned Principal Civil Judge and Principal JMFC, Dharwad (for short, 'the trial Court'), whereby the accused is acquitted for the offence punishable under Sec. 138 of the Negotiable Instrument Act (for short, 'the N.I. Act').

2. For the sake of convenience, the parties in this appeal are referred to as per their status and ranking before the trial Court.

3. Brief facts of the case are that, the appellant herein as complainant filed private complaint in PCR No.97/2006 before the trial Court against the respondent/accused alleging commission of the offence punishable under Sec. 138 of N.I. Act. It is stated that the complainant and accused were friends and were knowing each other since 12 years. It is contended that the accused approached the complainant during December-2005 and requested for hand loan of Rs.78,000.00 to meet his family necessities. He promised to repay the same within six months. Accordingly, the complainant lent an amount of Rs.78,000.00 and was demanding back the amount frequently. Finally, the accused issued the cheque dtd. 21/4/2006 bearing No.0423153 drawn on Malaprabha Grameena Bank, Extention Counter, D.C. Compound, Dharwad Branch for Rs.78,000.00 in favour of the complainant towards repayment of the loan amount. The cheque was presented for encashment by the complainant but the same was dishonoured as there was insufficient fund in the account of the accused. The complainant further contended that he issued legal notice to the accused informing him about the dishonour of the cheque and calling upon him to repay the cheque amount. The said notice was not claimed by the accused and has not repaid the cheque amount and thereby he has committed the offence punishable under Sec. 138 of N.I. Act.

4. The trial Court took cognizance of the offence, registered C.C.No.622/2006 and summoned the accused to appear before the Court. Accordingly, the accused appeared before the trial Court represented by his counsel. Since the accused pleaded not guilty for the offence alleged against him, the complainant examined himself as PW.1 and got marked Exs.P.1 to P.4 in support of his contention. The accused has denied all the incriminating materials available on record in his statement recorded under Sec. 313 of Cr.P.C. and got examined himself as DW.1 and also examined DW.2 and got marked Exs.D.1 and D.2 in support of his defence. The trial Court after taking into consideration these materials, came to the conclusion that the complainant has failed to prove the guilt of the accused and therefore the accused is entitled to be acquitted. Accordingly, the impugned judgment of acquittal came to be passed. Aggrieved by the said judgment of acquittal passed by the trial Court, the complainant has preferred this appeal.

5. Heard Sri.T.Hanumareddy, Amicus Curiae appearing for the appellant, Sri.S.N.Banakar, learned counsel for respondent No.1 and Sri.Praveen K Uppar, HCGP for respondent No.2. Perused the materials on record including the trial Court records.

6. Learned counsel for the appellant/complainant submitted that the complainant is successful in proving his contention regarding lending of the amount and issuance of the cheque towards repayment of the loan amount. The accused never denied the cheque marked as Ex.P.1. He also never denied dishonour of the cheque. The defence taken by the accused that he had issued Ex.P.1 in favour of DW.2 is not supported by any material except the self-serving statement made by the accused. Even DW.2 has not supported the contention of the accused. Under such circumstances, the trial Court could not have accepted the defence taken by the accused. Learned counsel further submitted that when the complainant has made specific averments and placed sufficient materials to prove lending of the amount and issuance of the cheque in que