A signed cheque creates a presumption of liability in favor of the payee, where the accused must prove otherwise to avoid conviction under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

M.G. UMA, J.

1. The appellant being the complainant in C.C.No.276/2017 on the file of the learned Civil Judge and JMFC, Muddebihal is impugning the judgment dated 19.02.2019, dismissing the complaint and acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘N.I. Act’).

2. The case of the complainant in brief is that, the accused, who was familiar to the complainant requested for hand loan of Rs.2,90,000/-. Accordingly, he had lent the amount to the accused on 20.10.2016. When the complainant insisted for repayment of the loan amount, the accused issued the cheque-Ex.P1 on 24.04.2017 for Rs.2,90,000/- towards repayment of the loan amount. When the cheque was presented for encashment, the same was dishonoured, as there was insufficient fund in the account of the accused and legal notice was issued by the complainant to the accused, informing about dishonour of the cheque and calling upon him to repay the cheque amount. Inspite of service of notice, the accused had not repaid the amount and thereby, committed the offence punishable under Section 138 of the N.I. Act.

3. The complainant filed the private complaint in P.C.No.22/2017. The Trial Court took cognizance of the offence and registered C.C.No.276/2017. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW.1 and got marked Exs.P1 to P4 in support of his contention. The accused denied the incriminating materials available on record, examined himself as DW.1 and got marked Exs.D1 to D16 in support of his defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant has not proved the guilt of the accused beyond reasonable doubt. Accordingly, the accused was acquitted. Being aggrieved by the same, the complainant is before this Court.

4. Heard Sri Malik Pasha Mauzan, learned counsel for the appellant. Respondent though served has remained unrepresented. Perused the materials on record.

5. In view of the submissions made by the learned counsel for the appellant, the point that would arise for my consideration is:

"Whether the impugned judgment of acquittal passed by the Trial Court suffers from infirmities and calls for interference by this Court?"

My answer to the above point is in the 'Affirmative’ for the following:

REASONS

6. It is the contention of the complainant that accused had requested for hand loan of Rs.2,90,000/- and accordingly, he had lent Rs.2,90,000/-. Towards discharge of the loan amount, the accused had issued cheque-Ex.P1 on 24.04.2017 for Rs.2,90,000/-. When the cheque was presented for encashment, the same was dishonoured. Inspite of service of notice, the accused had not repaid the amount and thereby, he has committed the offence punishable under Section 138 of the N.I. Act.

7. To prove his contention, the complainant examined himself as PW.1 and got marked the cheque at Ex.P1. Ex.P2 is the endorsement issued by the Bank for having dishonoured the cheque. Ex.P3 is the copy of the legal notice. Ex.P4 is the postal acknowledgment for having served the notice on the accused.

8. During cross-examination of PW.1, it is specifically suggested to the witness by the learned counsel for the accused that, five blank cheques were issued by the accused to the complainant and others as security in the matter of forming Adhi Jambav Co-operative Society and the same was misused by the complainant. Even though PW.1 admitted that they were intending to form Adhi Jambav Co-operative Society, he