The trial court's acquittal was upheld as the complainant failed to provide sufficient evidence to prove the lending capacity and enforceable debt under Section 138 of the NI Act.

JUDGMENT :

(RAJESH RAI K., J.)

In this appeal, the appellant/complainant has assailed the judgment of acquittal passed in CC No.1111/2015, dated 21.04.2017 by the Principal Civil Judge and JMFC, Gangavathi, [Hereinafter referred to as ‘trial Court’] whereby the learned Magistrate acquitted the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, [Hereinafter referred to as ‘NI Act’]

2. The parties are referred to as per their rankings before the trial Court, for the sake of convenience.

3. The abridged facts are that, the complainant and the accused are the family friends. On 24.01.2015, the accused borrowed a hand loan of Rs.8,00,000/- from the complainant for his family needs and financial difficulties with the assurance that he would repay the same with interest @ 24% per annum within two months. To discharge the said legal debt, the accused on the same day issued post dated cheque of Rs.8,00,000/- bearing No.960154 dated 24.03.2015 drawn on Andhra Bank, Gangavathi Branch. When the complainant presented the said cheque through its banker for encashment, the same returned with an endorsement “insufficient funds”. Subsequently, the complainant issued legal notice dated 04.04.2015 and the same was served on the accused on 06.04.2015. The accused neither replied the legal notice nor repaid the loan amount. As such, the complainant filed a private complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act before the trial Court.

4. To prove the case, the complainant himself examined as PW.1 and examined one more witness on his behalf as PW.2 and marked 11 documents as Exs.P1 to P11. The accused examined himself as DW.1 and marked 18 documents as Exs.D1 to D18.

5. After assessment of oral and documentary evidence, the trial Court acquitted the respondent/accused for the offence punishable under Section 138 of N.I. Act. The said judgment of acquittal is under challenge in this appeal by the complainant.

6. I have heard the learned counsel Sri. Shivakumar Aparaj for Sri. Mrutyunjay Tata Bangi, learned counsel for the appellant/complainant, so also learned counsel Sri. Neelendra D Gunde, for the respondent/accused.

7. The primary contention of the learned counsel for the appellant/complainant is that the trial Court has grossly erred while acquitting the accused for the offence punishable under Section 138 of N.I. Act, despite the complainant placing sufficient evidence and documents on record. According to him, PW.1 in his evidence has categorically deposed about the advancing loan amount to the accused and the issuance of the cheque by the accused for the said legally enforceable debt. Further, the accused has not disputed the cheque in question and signature on it. In such circumstance, initial presumption favours the complainant; the accused failed to rebut the said presumption by placing cogent evidence. Hence, the judgment of acquittal passed by the Trial Court suffers from perversity and illegality. Thus, he prays to allow the appeal and convict the accused for the offence punishable under Section 138 of N.I. Act.

8. Per contra, learned counsel for the respondent/accused contended that the trial Court after meticulously examining the entire evidence on record, passed a well-reasoned judgment, which does not warrant interference at the hands of this Court. He contended that the complainant has totally failed to prove his lending capacity of Rs.8,00,000/- to the accused. Further, the accused had put forth probable defence that in the year 2013, he availed a hand loan of Rs.1,50,000/- from the complainant and at that time, the complainant