The absence of evidence for a legally enforceable debt results in the presumption under Section 139 of the Negotiable Instrument Act not operating in favor of the complainant.

JUDGMENT :

C.M. Poonacha, J.

The present appeal is filed under Section 378 (4) of the Code of Criminal Procedure , [Hereinafter referred as ‘Cr.P.C.’] by the complainant calling in question the judgement dated 15.12.2018 passed in C.C.No.596/2011 by the Addl. Civil Judge and JMFC., Raibag[ Hereinafter referred as ‘trial court’] whereunder, in the complaint filed by the complainant alleging commission offence under Section 138 of the Negotiable Instrument Act, 1881 , [Hereinafter referred as ‘the Act’] by the respondent-accused, the trial Court has acquitted the accused.

2. The relevant facts in nutshell leading to the present appeal are that alleging that the respondent/accused had borrowed a sum of Rs.3,50,000/- from the complainant for his family necessities and when repayment of said amount was sought, the accused issued cheque bearing No.30553299165 dated 30.07.2009 drawn on State Bank of India, Harugeri Branch, which was dishonoured with the endorsement “Insufficient funds”, the complainant filed a complaint under Section 200 of Cr.P.C. That the notice dated 14.08.2009 issued by the complainant to the accused prior to filing of the complaint having been served on the accused and the accused having not responded the same, the accused has committed the offence punishable under Section 138 of the Act. The accused entered appearance before the trial Court and contested the proceedings.

3. The complainant examined herself as PW1 and marked exhibits P1 to P4. The accused examined himself as DW.1 and marked exhibits D1 to D4. The trial Court acquitted the accused for the offence punishable under Section 138 of the Act. Being aggrieved by the same, the present appeal is filed.

4. Learned counsel for the appellant vehemently contends that the accused in his cross examination has admitted having signed the cheque. Hence, it is contended that having regard to the presumption contained under Section 139 of the Act, the accused ought not to have been acquitted by the trial Court. It is further contended that the complainant having examined herself as PW1 and the cheque (Ex.P1) having been marked in evidence, having regard to the fact that the legal notice dated 14.08.2009 (Ex.P.3) having been served on the respondent-accused, as it is forthcoming from the postal acknowledgment card(Ex.P4), in view of the admission of the respondent-accused that he has signed the cheque and keeping in mind the presumption available to the complainant under Section 139 of the Act, the complaint filed by the complainant is required to be allowed and accused is required to be convicted for the offence punishable under Section 138 of the Act.

5. The submissions of the learned counsel for the appellant have been considered and the material on record of trial Court has been perused the question that arise for consideration of this Court is :

i) Whether judgment dated 15.12.2018 passed by the trial Court acquitting the accused is liable to be interfered with?

6. In the legal notice (Ex.P3), it is averred that the accused has received sum of Rs.3,50,000/- from the complainant for family necessities and hence, the cheque dated 30.07.2009 has been issued which was dishonoured. In the complaint, the complainant has averred that the accused having approached the complainant and borrowed a sum of Rs.3,50,000/- for family necessities and when the accused requested the complainant to repay the said amount, the accused issued the cheque dated 30.07.2009.

7. It is pertinent to note that the complainant has not averred as to when the accused has borrowed the loan of Rs.3,50,000/- and in what manner and wh