The burden of proof lies with the complainant to establish the existence of a legally enforceable debt and their financial capacity to advance the loan.

JUDGMENT :

1. This appeal is filed under sec. 378(4) of Cr.P.C. by the appellant-complainant for setting the judgment and order of acquittal passed by the learned JMFC, Mundargi in CC No.203/2010 dtd. 12/7/2012 whereby he has acquitted the respondent-accused for the offence punishable under Sec. 138 of the N. I. Act and sought for allowing this appeal by convicting the accused- respondent.

2. For the sake of convenience, parties herein are referred with original ranks occupied by them before the Trial Court.

3. The brief factual matrix leading to the case is that the accused is in cordial relationship with the complainant and they are good friends from several years. That, the accused is in the habit of receiving financial assistance from the complainant as per his need and on 16/6/2007, accused came to Mundgod and received Rs.3,00,000.00 from the complainant for his financial difficulties. The complainant has paid Rs.3,00,000.00 in presence of witnesses and accused executed letter attested by two witnesses by undertaking to repay the said hand loan amount within a period of 1 year from 16/6/2007. That, thereafter, accused did not make any payment and on several occasions the complainant requested him for repayment of hand loan and the accused in order to discharge the said liability has issued a cheque on 25/3/2010 of Karnataka Bank, Sirsi Branch and when the said cheque was presented on 3/4/2010 for collection, it was dishonoured. The said fact was brought to the notice of the accused by issuing legal notice. But accused did not respond to the notice and has not repaid the said amount. Hence, he has filed complaint under Sec. 200 of Cr.P.C., against the accused. After recording the sworn statement, the learned Magistrate found that there is sufficient material evidence to proceed against the accused and hence, he has issued process. The accused appeared before the learned Magistrate and was enlarged on bail. He denied the accusation made against him. Then, the complainant was examined as PW1 and he placed reliance on 20 documents marked at Ex.P1 to Ex.P20. He also got examined two witnesses on his behalf, who were alleged to be attesting witnesses to Ex.P9 hand loan documents. The accused in defence, got examined himself as DW1 and one witness was also examined on his behalf as DW2. He placed reliance on six documents marked at Ex.D1 to Ex.D6. Thereafter, the learned Magistrate heard the arguments and found that the complainant has failed to bring home the guilt of the accused beyond all reasonable doubt and hence, acquitted the accused. Being aggrieved by the judgment of acquittal, the complainant filed this appeal.

4. Heard the arguments advanced by the learned counsel for appellant and also the learned counsel appearing for respondent-accused. I have also meticulously perused the records as well as the evidence led by the parties.

5. The learned counsel for the appellant would contend that the judgment of acquittal passed by the Trial Court is erroneous and contrary to the evidence and the Trial Court has erred in considering the variances in the name of accused ignoring Ex.P9, wherein the signature is in the name of Durgappa Durgad and the signature on Ex.P1 is also admitted. That the finding of the Court regarding service of notice is also improper and the Trial Court has failed to draw inference regarding service of notice. That the Trial Court has also committed error in giving benefit under Sec. 269(SS) of the Income Tax Act and the presumption under Sec. 139 of the N. I. Act in favour of the accused. Hence, he would contend that the Trial Court is not justified in acquitting the accused and it has led to miscarriage of justice.

6. Per contra, learned counsel appearing for respondent-accused has contended that the name of the accused is Dyamappa and not Durgappa and identity card as well as passbook produced clearly establish the name of the accused. He would contend that it is hard to accept the version of the compl