IMPORTANT POINT
Loan transaction has to be proved by some other evidence apart from cheque.

K.N. Keshavanarayana, J.—This appeal filed under Section 378(4) of the Criminal Procedure Code, 1973 are directed against the judgment and order dated 18.6.2007 passed by the XXI Additional C.M.M., Bangalore, in C.C. No.17092 of 2004 acquitting the respondent accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I. Act’).

The appellant-complainant filed a private complaint under Section 200 of the CrPC against the respondent alleging offence punishable under Section 138 of the NI Act inter alia contending that during the month of January, 2004, the accused along with one Mr. N. Satish approached him for a hand loan of Rs. 50,000 to meet his urged need of money for the construction of his house. Accordingly the complainant gave hand loan of Rs. 50,000 to the accused in the presence of the said N. Satish and the accused promised to repay the said hand loan during the month of January, 2004. When the complainant approached the accused during the month of June, 2004 requesting him to repay the hand loan, the accused issued a cheque dated 14.6.2004 drawn on State Bank of India, Basaveshwaranagar, Branch, Bangalore towards repayment of the hand loan. However, when the said cheque was presented for encashment, the same was returned unpaid with Banker’s endorsement dated 18.6.2004 “funds insufficient” and in spite of service of notice, the accused has failed to pay the amount covered under the cheque, as such, he has committed the offence punishable under Section 138 of the NI Act.

2. Upon service of summons issued by the learned Magistrate the respondent accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him and claimed to the tried. During the trial, the complainant examined himself as PW 1 and got marked Ex. P1 to P7. During his examination under Section 313 of the CrPC, the accused denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence, the respondent-accused examined himself as DW 1. It was the specific defence of the accused that there was no monetary transaction between him and the complainant that at no point of time he has borrowed a sum of Rs. 50,000 from the complainant nor he had issued the cheque in question to the complainant for discharge of the said loan amount. It was also his defence that the complainant had no financial capacity to lend loan of Rs. 50,000 and that he (accused) is a Government servant having sufficient income and that his son as well as daughter are also employed, as such, there was no necessary for him to take any loan from the complainant, and that he has never seen the complainant.

3. The learned Magistrate after hearing both sides and on assessment of the oral and documentary evidence by the common judgment under appeal, acquitted the respondent-accused on the ground that the circumstances brought out on record in the cross-examination of the complainant and in the light of the defence of the accused, the accused has rebutted the presumption under Sections 139 and 118 of the NI Act and since the complainant has not placed any evidence to establish existence of any debt and that the cheque in question was issued for discharge of the said debt, offence under Section 138 of the NI Act is not made out. Being aggrieved by the said judgment and order of acquittal, the complainant has presented this appeal on grant of special leave.

4. Upon service of notice of this appeal, the respondent-accused has appeared through his learned counsel. I have heard both sides and perused the records.

5. As noticed above, it is specified case of the complainant that during the month of January, 2004, the accused received a hand loan of Rs. 50,000 from him and towards repayment of the said amount, on 14.6.2004, the accused issued the cheque in question, which came to be dishonoured for insufficient funds in the account. As noticed by