This appeal arises out of the judgment of acquittal

passed in C.C.No.8095/2006 dated 07.03.2012 by the

XVIII ACMM & XX ASCJ, Bengaluru wherein the

respondent/accused was acquitted for the offences

punishable under Section 138 of Negotiable Instruments

Act, 1881 (for short hereinafter referred to as 'N.I.Act').

2.

The appellant filed a complaint before the

learned Magistrate under Section 200 of Code of

Criminal Procedure (for short hereinafter referred to as

'Cr.P.C.') against the accused for the offence punishable

under Section 138 of N.I.Act.

3.

The appellant is the complainant and the

respondent is the accused before the Trial Court. They

will be referred as per their respective ranks held before

the Trial Court for the sake of convenience.

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4.

It is contended that the accused is known to

the complainant. The accused has borrowed a sum of

Rs.90,000/- during the month of April, 2005 and

towards the repayment of the same, he has issued a

cheque bearing No.840034 dated 30.07.2005 for a sum

of Rs.90,000/- drawn on Indian Bank, Avenue Road

Branch, Bengaluru in favour of the complainant. The

complainant demanded the accused to repay the

amount. But he did not repay the amount. Infact the

accused requested the complainant not to present the

cheque issued by him as he was unable to mobilise the

funds on 30.07.2005. Thereafter the complainant

presented the said cheque on 15.11.2005, but the said

cheque was returned dishonored with an endorsement

that 'Account Closed'. Hence, the complainant issued

statutory legal notice calling upon the accused to pay

the amount. Though the notice was served on the

accused, the accused neither replied nor come forward

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to pay the cheque amount. Hence, the complainant

lodged the complaint.

5.

In

order

to

prove

the

case

of

the

complainant, he got examined himself as PW.1 and got

marked twelve documents as Exs.P1 to P12. The

accused got examined himself as DW.1 and examined

another witness - B.N.Phaneedra as DW.2 and marked

three documents as Exs.D1 to D3. After hearing the

arguments, learned ACMM acquitted the accused.

Hence, this appeal.

6.

Heard Sri. M.D.Alavandar, learned counsel for

the appellant and Sri. M.Subramani, learned counsel for

the respondent.

7.

Learned counsel for the appellant argued that

the judgment passed by the learned ACMM is opposed

to the evidence on record and facts of the case. The

learned ACMM has not appreciated the evidence in

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proper perspective. The learned ACMM relying on the

self-serving testimony of accused, acquitted him which

is not tenable. The accused has admitted the signature

on Ex.P1/cheque and issuance of cheque. Though the

legal notice is served, the accused has not given any

reply. But the learned ACMM has failed to consider the

presumption arising under Section 139 of N.I. Act and

without drawing any presumption, learned ACMM has

answered the point No.1 in negative and the same is

illegal. The learned ACMM failed to notice that the

defence of the accused regarding committing the theft

of cheque is neither probable nor proved. The finding of

the learned ACMM regarding financial capacity of the

complainant to lend the money is not sustainable either

in law or in facts. Though the complainant has proved

the

ingredients

of

Section

138

of

N.I.Act

and

presumption is also in his favour and when the accused

has failed to rebut such presumption, the learned

ACMM, has erred in acquitting the accused.

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8.

The

learned

counsel

argued

that

the

complainant and accused are known to each other and

they are acquainted with each other and the amount

was lent on the basis of mutual trust and desire to help

each other. Learned ACMM has held that no documents

were obtained for lending the amount such observation

is illegal and not tenable, as the amount was lent out of

friendship as both appellant and the accused are close

friends. Every transaction between friends or relatives

payment of interest on the amount lent is not insisted

upon