The main legal point established in the judgment is the requirement for the complainant to prove the existence of a legally enforceable debt and the dishonor of the cheque in a case under Section 138 of the Negotiable Instruments Act, 1881.

JUDGMENT

Rajendra Badamikar, J. - Though this appeal is listed for admission, with the consent of the learned counsels appearing on both sides, the same is taken up for final disposal.

2. The complainant/appellant has filed this appeal under Section 378(4) of Criminal Procedure Code, 1973 ('Cr.P.C.' for short) challenging the judgment of acquittal dated 01.09.2017 passed by the Civil Judge and JMFC, Holenarasipura ('trial Court' for short) in C.C. No.675/2013, whereby the learned Magistrate has acquitted accused/respondent herein for the offence 138 of N.I. act.

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

4. The brief factual matrix leading to the case is that, the complainant and accused are acquainted with each other and the respondent borrowed loan of Rs.3,00,000/-on 25.11.2013 for his legal necessities. It is the further case of the complainant that, towards repayment of the said loan, the accused has issued a cheque dated 28.03.2013 drawn on Post Office, Holenarasipura and when the complainant has presented the said cheque, it was returned with an endorsement 'Insufficient Funds'. Later on, the complainant has got issued a legal notice on 30.03.2013 demanding repayment of the loan amount and to the said notice, the accused has given an evasive reply. Hence, he lodged a complaint under Section 200 of Cr.P.C. alleging that, accused has committed an offence under Section 138 of the Negotiable Instruments act, 1881 ( 'N.I. act' for short).

5. Learned Magistrate after taking cognizance has recorded the sworn statement of the complainant and issued process against the accused. The accused has appeared through his counsel and enlarged on bail. The accusation was read-over and explained to accused and he pleaded not guilty and claimed to be tried.

6. The complainant was got examined himself as PW.1 and placed reliance on five documents marked at Ex.P1 to Ex.P5. after conclusion of evidence of the prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him. The case of accused is of total denial. He did not choose to lead any oral or documentary evidence in support of his defence.

7. after having heard the arguments and on perusing the records, the learned Magistrate has come to a conclusion that, the complainant has failed to establish that accused has committed offence under Section 138 of N.I. act by issuing a cheque in respect of legally enforceable debt and thereby acquitted the accused/respondent herein. Being aggrieved by he judgment of acquittal, complainant has approached this Court by filing this appeal.

8. Heard the arguments advanced by the learned counsel for appellant and respondent. Perused the records.

9. Learned counsel for the appellant would contend that the reasons assigned by the trial Court for acquitting the accused are based on principles of law of equity and justice. He would further contend that the trial Court has failed to note that, no rebuttal evidence is adduced by the accused and since signature on the cheque is admitted, the presumption ought to have been drawn in favour of the complainant and when presumption is not rebutted, the trial Court ought to have convicted the accused. He would contend that, accused has not led any evidence to rebut the presumption and the trial Court has ignored these material aspects and hence he would contend that the judgment of acquittal is perverse and calls for interference by this Court. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of acquittal and sought for convicting the accused.

10. Per contra, the learned counsel for the respondent/accused would contend that the financial capacity of the complainant to advance Rs.3,00,000/- itself is in dispute and the complainant has not produced any material document to show his financial status. Further, he would also