This appeal filed under Section 378(4) of Code of

Criminal Procedure, is by the complainant challenging the

acquittal of accused by the Sessions Court, thereby

reversing her conviction and sentence imposed by the trial

Court for the offence punishable under Section 138 of N.I.

Act.

2.

For the sake of convenience the parties are

referred to by their rank before the trial Court.

3.

Complainant filed a private complaint under

Section 200 Cr.P.C. for the offence punishable under

Section 138 of N.I. Act, alleging that he and accused are

known to each other. During her hard days accused

borrowed a sum of Rs.1,20,000/- on 01.02.2008, agreeing

to repay the same with interest at 18% p.a. within a period

of six months. When she failed to repay the amount as

agreed, after several request and demand, she issued a

cheque for Rs.1,00,000/- dated 13.08.2008. When he

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presented the same for encashment, on 09.09.2008 it was

returned with endorsement "Account closed". He got issued

a legal notice on 24.09.2008 calling upon her to pay the

amount due under the cheque. The notice sent through

RPAD

is

returned with endorsement "Not claimed".

However, the notice sent through COP is served on her. In

fact accused has sent a untenable reply dated 06.10.2008.

Without any alternative, he has filed the complaint.

4.

After

recording

sworn

statement

of

the

complainant, the trial Court took cognizance. After service

of summons, accused has appeared and contested the

complaint, mainly contending that she had lost her vanity

bag containing 385 cheques of 12 Banks and utilizing one

such cheque, complainant has filed a false complaint

against her. She has also taken up a specific defence that

complainant is not at all having financial capacity to lend

Rs.1,20,000/- to her and in fact she had no such financial

need to borrow the said sum from the complainant. She is

not at all knowing the complainant.

5.

During trial complainant has examined himself

as PW-1 and got marked Ex.P1 to 9.

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6.

During the course of her statement under

Section 313 Cr.P.C, accused has denied the incriminating

evidence.

7.

Accused has examined herself as DW-1 and got

marked Ex.D1 to 4.

8.

Vide judgment and order dated 18.04.2011, the

trial Court convicted the accused and sentenced her pay

fine of Rs.1,25,000/- in default to undergo simple

imprisonment for a period of three months.

9.

Accused

challenged

the

same

in

Crl.A.No.74/2011 before the Sessions Court. Vide judgment

and order dated 14.07.2011, the Sessions Court allowed

the appeal and acquitted the accused.

10.

Aggrieved by the same, complainant is before

this Court contending that the Sessions Court has

committed a serious error in reversing the conviction. The

Sessions Court has not properly appreciated the oral and

documentary evidence placed on record. Despite the

presumption under Section 118 and 139 of the N.I. Act, the

Sessions Court has erred in not accepting the case of the

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complainant and reversing a well reasoned judgment of the

trial Court. The defence taken by the accused that she has

lost her purse containing 385 cheques of 12 Banks is

imaginary and unreal and such a defence is taken up only

for the purpose of this case. This fact is not properly

appreciated by the Sessions Court. In fact the admissions

given by the accused during her cross-examination show

that she and her husband were facing financial crisis and

borrowed money and number of cheque bounce cases were

pending against them. This fact is not properly appreciated

by the Sessions Court and prays to set aside the judgment

and order of the Sessions Court and restore the judgment

and order of the trial Court.

10.1 In support of his arguments, learned counsel for

appellant has relied upon following decisions.

a) Sri R.Rajappa V/s Sri K.Ashok Rai¹

b) M/s Kalamani Tex and another V/s

P.Balasubramanian²

c) Sumeti Vij V/s M/s Paramount Tech

Fab Industries³

d) Kumar Exports V/s Sharma Carpets⁴

1 2021 (4) K.L.J. 524

2 Crl.A.No.123/2021 (SLP (Crl.) No.1876/2018

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