IMPORTANT POINT
Presumption mandated by Section 139 of the NI Act includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.

JUDGMENT

K. Natarajan, J.—This appeal is preferred by the appellant/complainant being aggrieved by the judgment and order of acquittal dated 05.05.2010 passed by the District and Sessions Judge and Fast Track Court-IV at Bengaluru (hereinafter referred to as ‘the first Appellate Court’, for short) in Criminal Appeal No.500/2009.

2. The appellant was the complainant and the respondent was the accused before the trial Court. For the sake of convenience, the rankings of the parties are retained.

3. I have heard the arguments of the learned counsel for the appellant Sri. M. R. Mahesh as well as the learned counsel for the respondent Sri. R. D. Pancham.

4. The brief facts of the case of the complainant before the trial Court is that;

The complainant and the accused were known to each other. The accused had borrowed a loan of Rs.1,00,000/- from the complainant in the month of April, 2008 and to discharge the said loan, the accused had issued a cheque (Ex.P2) dated 20.10.2008 for a sum of Rs.1,00,000/- in favour of the complainant. When the cheque has been presented in the bank of the complainant, the said cheque came to be dishonoured with an endorsement (Ex.P3) as ‘insufficient funds’. The complainant got issued Legal Notice to the accused through RPAD as well as Under Certificate of Posting (UCP). The same was served on the accused. The accused neither repaid the loan amount nor gave any reply. Hence the complainant filed a complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’, for short), before the 16th Addl. Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as ‘the trial Court’, for short) in C.C.No.1375/2009.

After taking cognizance, learned Magistrate registered a criminal case against the accused and he has been summoned to appear before the Court. The accused pleaded not guilty and claimed to be tried. The complainant got himself examined as PW1 and got marked in all seven documents. The accused, except cross-examining PW1, not let in any evidence.

After considering the material on record, the trial Court convicted the accused and sentenced him to pay Rs.1,10,000/- as fine and in default, to undergo simple imprisonment for one year and out of the said amount, he was directed to pay Rs.1,06,000/- to the complainant as compensation.

Being aggrieved by the judgment of conviction and sentenced passed by the trial Court, the accused filed an appeal before the first Appellate Court in Criminal Appeal No.500/2009. After hearing the arguments of both sides, the first Appellate Court allowed the appeal filed by the accused by judgment dated 05.05.2010 and set aside the judgment of conviction and sentence passed by the trial Court dated 23.05.2009.

Being aggrieved by the reversal of the judgment and acquitting the accused, the complainant is before this Court.

5. Learned counsel for the appellant/complainant strenuously argued that the accused and the complainant are known to each other. The accused was the Film Producer. For the purpose of producing Cinema, he approached the accused for borrowing money and the complainant gave Rs.1,00,000/- to the accused in April, 2008. The accused gave assurance to repay the same within 6 months. But he failed to repay. When the complainant approached the accused in October, 2008, the accused gave a cheque for a sum of Rs.1,00,000/- with the assurance that the cheque will be honoured on its presentation. But to the utter surprise of the complainant, when the cheque was presented to the bank, it came to be dishonoured with an endorsement ‘insufficient funds’. Though the Legal Notice of the complainant is received by the accused, but he neither replied nor repaid the loan amount. Hence the complainant was constrained to file a private complaint before the Magistrate. The learned counsel further argued that, based upon the evidence on record, the trial Court has rightly convicted the accused, but the first Appellate Co