The complainant failed to prove a recoverable debt under Section 138 of the N.I. Act, as the presumption was successfully rebutted by the accused.

JUDGMENT

Heard the learned counsel Shri N. Murali for the appellant and the learned Senior Counsel Shri R.S. Ravi appearing on behalf of Shri Narendra D.V. Gowda, learned counsel for the respondent.

2. This appeal arises out of the judgment of acquittal passed by the learned Senior Civil Judge & JMFC, Krishnarajanagar in C.C.No.308/2016 dated 06.04.2018. The appellant was the complainant before the Court and the respondent was the accused.

3. The appellant filed a complaint before the Trial Court alleging that on 20.04.2016, the accused borrowed a sum of Rs.2,50,000/- for his legal necessities and also for discharge of his earlier loan. The accused promised to repay the amount and in respect of the payment, he has issued a post-dated cheque bearing No.189441 for Rs.2,50,000/- dated 25.05.2016. Thereafter, the complainant presented the said cheque through his banker Bank, but cheque was returned dishonoured with the endorsement stating that ‘funds insufficient’. Then, he issued a legal notice on 03.06.2016 calling upon the accused to pay the cheque amount. In spite of service of notice, accused neither repaid the amount nor replied to the notice. Hence, complainant filed a complaint.

4. Before the Trial Court, complainant got himself examined as PW-1 and got marked 4 documents as Exhibits P1 to P4. After recording the 313 Cr.P.C. statement and hearing the arguments of the learned counsel for the parties, learned JMFC acquitted the accused. Aggrieved by the same, this appeal is preferred.

5. The learned counsel for the appellant argued that the Trial Court has not properly appreciated the evidence on record and has failed to appreciate the fact that Exhibit P1 / cheque is not disputed by the accused. Accused has also not replied to the legal notice. The accused, in order to avoid repaying the cheque amount, has taken some false ground, which the Trial Court has believed and has committed an error in holding that the appellant has failed to prove the case. The accused has not disputed his signature on the cheque also. Therefore, there is an initial presumption.

6. It is further argued that the learned Magistrate has wrongly appreciated Exhibit D1 / legal notice dated 19.03.2016. In that notice, the accused was called upon to pay Rs.1,50,000/-. But the notice dated 03.06.2016 is for Rs.2,50,000/-. The entire transaction was different.

Hence, the learned Magistrate has failed to appreciate the same. There is no reference to any cheque in Exhibit D1. The accused has not entered the witness box and has not been cross-examined. There is no evidence that he has repaid the amount.

7. The learned counsel further argued that when Exhibit D1 notice was issued for Rs.1,50,000/-, the accused again came and pleaded with the complainant to lend him some more loan. For that, complainant again gave him Rs.1,00,000/-, which totally comes to Rs.2,50,000/-. It is only one transaction and there are no two transactions. Hence, he prayed to set aside the judgment of acquittal and to allow the appeal.

8. Against this, the learned Senior counsel Shri R.S. Ravi argued that the judgment passed by the Trial Court is legal and correct. The learned JMFC has rightly appreciated the evidence on record and after considering Exhibit D1, the Trial Court has rightly acquitted the accused. Learned counsel also has drawn the attention of the Court to the deposition of PW-1 wherein he has admitted that except one transaction, there are no other financial transactions with the accused. Therefore, Exhibit D1 is fatal to