IMPORTANT POINT
Where cheque was returned unpaid with endorsement ‘account closed’ and account was closed a year before date of issuance of cheque at instance of bank and not at instance of accused, provisions of Section 138 of N.I. Act would not be attracted.

JUDGMENT

V.G. Sabhahit, J.—This appeal by the complainant is directed against the judgment of acquittal passed by the Court of the Additional Civil Judge (Junior Division), Udupi, in Criminal Case No.3325 of 1997, dated 10.7.2001, wherein the respondent has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’).

The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:

2. The appellant herein filed a private complaint under Section 200 of the Criminal Procedure Code, 1973, against the accused alleging that the accused had borrowed a sum of Rs. 25,000 from the complainant in January 1996 on the pretext that he needed the money urgently for the medical treatment of his close relative. The complainant lent the money in cash, on sympathetic grounds since he knew the accused for several years. The accused promised to repay the amount within two months and there was no agreement to pay any interest. However, the accused did not bother to repay the amount within two months and after persistent reminders, he issued a cheque dated 3.6.1997, bearing No. 0076049 of Syndicate Bank, Catholic Centre Branch, Udupi, for Rs.19,750 and when the said cheque was presented for payment, the same was returned with the endorsement “account closed”. Lawyer’s notice was issued on 16.6.1997 and the said notice was served upon the accused and the accused has given an untenable reply instead of complying with the demand and wherefore, the complaint that the respondent has committed the offence punishable under Section 138 of the Act. The Trial Court recorded the statement of the complainant and issued summons to the accused and the accused appeared and pleaded not guilty and claimed to be tried. On behalf of the complainant, the complainant was examined as PW1 and he also examined PW 2 to prove the endorsement, Ex. P 2 and got marked the documents, Exs. P1 to P 5. On behalf of the accused, the accused was examined as DW 3 and he also examined DWs 1 and 2 and got marked the documents, Exs. D1 to D13. The Trial Court after considering the contentions of the learned counsel appearing for the complainant-appellant and the accused and appreciating the oral and documentary evidence on record adduced by the parties, held that the complainant has failed to prove that the respondent-accused has committed the offence punishable under Section 138 of the Act and accordingly, acquitted the respondent-accused of the said offence by the judgment dated 10.7.2001. Being aggrieved by the said judgment of acquittal, the complainant has preferred this appeal.

3. I have heard the learned counsel appearing for the appellant. Having regard to the contentions urged, the point that arises for determination in this appeal is:

Whether the judgment of acquittal passed by the Trial Court calls for interference in this appeal?

I answer the above point for determination in the negative for the following:

Reasons:

4. Learned counsel for the appellant has taken me through the evidence of PWs l and 2 and DWs. 1 to 3 and the contents of the documents got marked by the complainant and the accused. Learned counsel for the appellant submitted that the Trial Court was not justified in acquitting the respondent and material on record shows that the accused has committed the offence punishable under Section 138 of the Act.

5. PW l complainant has reiterated the averments made in the complaint and has produced Exs. P1 to P5. It is elicited in the cross-examination of PW1 that a part from the transaction in question, he had no other transaction with the accused and the accused has filed a criminal case against him stating that he has committed theft of the cheque and the said case is pending in O.S. No.558 of 1997 in Kannanooru Court and he has engaged an Advocate in the said case. It is further elicited in the cross-examination of PW1