Point of Law: It is settled principle of law that cheque issued in respect of uncertain future, liabilities would not attract provision under Section 138 of Act.

JUDGMENT :

The complainant, in C.C No.40582/2008 on the file of XIV Addl. CMM, Bengaluru City, has preferred this appeal challenging the judgment and order dated 02.02.2012, whereby acquitting the accused/respondent for the offence punishable under Section 138 of Negotiable Instrument Act, 1981 (for short 'the Act').

2. I have heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused.

3. It is the case of the complainant that the accused has presented herself as owner of site bearing No.25 situated at Vijinapura Village, K.R. Puram Hobli, Bangalore East Taluk, and the complainant purchased the same under the sale deed 25.05.2007. Subsequently, the accused executed the registered sale deed in favour of the complainant on 10.09.2007. Later, when the complainant went near the site, one Smt.A.Sadhana obstructed her by claiming that she is an absolute owner of the said property since she purchased the same vide sale deed dated 15.05.2002 from the vendor of the accused. She also stated that she has filed a case in O.S.No.7990/2007 before the City Civil Court, Bangalore against the accused and her husband. The copy of the caveat petition also shown by her. According to her, the accused has sold the same property to the complainant by misrepresenting the facts and without disclosing the defect title of the property. After few days, the complainant came to know the fraud played by the accused and the accused agreed to return the sale consideration. Accordingly, the accused issued the cheque bearing No.208134 dated 15.03.2008 for a sum of Rs.10,00,000/-drawn on Canara Bank, Frazer Town Branch, Bengaluru and promised that she will take back the cheque and pay the cash. Afterwards, the accused did not come forward to pay the cash and therefore, the complainant presented the cheque for encashment through her banker i.e., Karnataka Bank, Murphy Town, Bengaluru. The said cheque was dishonoured for the reason 'the payment stopped by the drawer'. Subsequently, she issued the legal notice to the accused on 07.08.2008 calling upon to pay the cheque amount within 15 days. The notice was served to the accused and on 21.08.2008, she replied to the legal notice denying her liability. Since the accused failed to make the payment, the complainant filed the complaint before the learned XIV Addl. CMM, Bangalore under Section 200 of Cr.P.C r/w Section 138 of the Act to take cognizance of the offence under Section 138 of the Act and to punish her for the said offence.

4. Before the trial Court, the complainant examined herself as PW.1 so also got marked 12 documents as Exs.P1 to P12. The accused also examined herself as DW.1 and got marked 4 documents as Exs.D1 to D4.

5. The learned Magistrate, after assessment of the oral and documentary evidence on record, acquitted the accused for offence punishable under Section 138 of the Act vide judgment dated 02.02.2012 as stated supra. The said judgment is challenged by the complainant in this appeal.

6. Learned counsel for the appellant/complainant, vehemently, contended that the complainant has fulfilled the requirements envisaged under Section 138 (A to C) of the Act and the accused has admitted the cheque as well as her signature on it. Therefore, a legal presumption exists in favour of the complainant. The trial Court ought to have drawn the said presumption and held that the cheque was issued to discharge legally recoverable debt. He would further contend that the amount mentioned in the cheque is a legally enforceable debt since the accused issued the same to return the sale consideration dated 25.05.2007, for the reason that the accused played a misrepresentation/fraud to the complainant by executing the sale deed of the property which already sold by her vendor to 3rd party. As such, she agreed to return the sale consideration by way of cheque in question. In spite of the same, the accused dishonoured the cheque with an intention to cheat the complainant. He wou