IMPORTANT POINT
To raise presumption under Section 139 of the NI Act the complainant has to establish that he received the cheque from the accused and because holder thereof and a debt or liability existed on the date of the cheque.

Arali Nagaraj. J.—The complainant in C.C. No.7926/2002 on the file of the learned J.M.F.C., IV Court, Mangalore, Dakshina Kannada (hereinafter referred to as “Trial Court” in short) has challenged in this appeal the judgment and order of acquittal dated 23.4.2004 passed in the said case acquitting the accused therein (who is the respondent herein) of the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as “N. I. Act” in short).

2. I have heard the arguments of Sri G. Balakrishna Shastry, the learned counsel for the appellant/complainant and also Sri Shahul Hameed, the learned Advocate for Sri. B. L. Acharya, the learned counsel for the respondent accused and perused the impugned judgment and also the entire material found in the original records obtained from the Trial Court.

3. Stated in brief the case of the complainant as averred in his complaint filed under Section 200 Cr.P.C. is as under. (Parties will be referred to as per their rank before the Trial Court).

(a) Since the husband of the accused died in a road traffic accident that occurred on 19.2.2001, she was in need of money and therefore she approached the complainant to advance her a amount of Rs.70,000 saying that she would repay the same within six months. Therefore, the complainant lent her the said sum of Rs.70,000 on 27.3.2001. In consideration of the said loan amount the accused executed an on demand promissory note on the same day i.e. on 27.3.2001 in favour of the complainant agreeing to repay said amount within six months from 27.3.2001. But she failed to do so.

(b) On 6.4.2002 the accused issued a crossed cheque bearing No.109411 in favour of the complainant drawn on her account maintained with Canara Bank, Car Street branch, Mangalore towards discharge of the said debt. When the said cheque was presented to the bank on 17.4.2002, it came to be dishonoured and returned on 19.4.2002 with endorsement as funds insufficient payment stopped by the drawer. Therefore, the complainant got issued a statutory notice to the accused calling upon her to pay the said amount of Rs.70,000. In response to the said notice the accused did not make payment of the said amount to the complainant within the stipulated period. Therefore the complainant filed her said complaint.

4. On appreciation of the oral evidence of the complainant as PW1, that of the accused as DW 1 and her two witnesses DW 2 and DW 3 and also the documents at Exs. PI to 11 produced by the complainant and documents at Exs. Dl to 11 produced by the accused, the Trial Court passed the impugned judgment and order acquitting the accused of the offence under Section 138 of N.I. Act. Therefore, the complainant has preferred the present appeal.

5. On careful reading of the impugned judgment, the evidence of PW I complainant, DWI accused, DW2 and 3 the two witnesses for the accused and also on perusal of the documents Exs. PI to P 11 and Exs. Dl to D II it could be seen that it is the case of the complainant that she lent Rs. 70,000 to the accused on 27.3.2001 and the accused executed Ex. P3 on demand promissory note in her favour on the same day. But case of the accused is that one Jeevan Kumar, Advocate who had filed a claim petition on behalf of the accused and other dependents of her husband in respect of the death of her husband in the Motor Vehicle accident obtained from her a signed blank cheque saying that it was required for getting the release of the compensation amount in her favour and thereafter he demanded from her 20% of the compensation as his legal fees but she did not agree to it and therefore he got the said cheque misused through the complainant, who used to get compensation cases for the said advocate and as such she (accused) never borrowed the said amount of Rs.70,000 from the complainant as alleged against her.

6. Sri G. Balakrishna Shastry, learned counsel for the appellant/complainant strongly contended as under:

(i) The Trial Court