Appellant/complainant feeling aggrieved by judgment of

acquittal passed by Prl. Civil Judge and JMFC, Hubballi, in

C.C.No.1308/2012 dated 13.06.2018 preferred this appeal.

2.

The trial Court by its judgment dated 30.12.2015

convicted the accused and imposed sentence as per order of

sentence. Accused feeling aggrieved by the said judgment of

conviction and order of sentence preferred appeal before the

first Appellate court in Crl.A.No.17/2016. The first Appellate

Court by its judgment dated 27.01.2018 allowed the appeal in

part and remanded the case to trial Court to re-examine the

documents Exs.P.5, 12 and 13 and also for ascertaining

compensation. It is after remand the trial Court by impugned

judgment acquitted the case.

3.

Parties to the appeal are referred with their ranks as

assigned in the trial Court for the sake of convenience.

4.

The

factual

matrix

leading

to

the

case

of

prosecution can be stated in nutshell to the effect that

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complainant is a proprietor of Karnataka Automotive situated at

Harbachan complex, Deshpande nagar, Hubballi, being the sole

distributor for Bharat Springs. Accused is known to complainant

being the businessman and good friend. Complainant in order

to help his friend-accused, from time to time has advanced loan

of Rs.14 lakhs. Accused in discharge of the said debt issued two

cheques of Rs.7 lakhs each bearing Nos.944978 and 944980

drawn on Vijaya Bank, S.M.E., Gokul road, Hubballi. The said

cheques when presented for encashment were returned with

endorsement ‘opening balance insufficient’ vide bank memo

dated 16.10.2012. Complainant issued demand notice dated

15.11.2012 and the accused did not deliberately receive the

notice which was returned as ‘not claimed’. Therefore,

complainant has filed complaint for taking appropriate legal

action against the accused.

5.

In response to the summons, accused has appeared

through counsel and contested the case. Complainant in order

to prove his case relied on the evidence of PW-1 and

documents Ex.P.1 to Ex.P.13. Accused relied on his own

evidence as DW-1 and no any documents were marked on his

behalf. The trial Court after having heard arguments of both

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side and on appreciation of evidence on record has acquitted

the accused by judgment dated 13.06.2018.

6.

Appellant/complainant has challenged correctness

and legality of the judgment of acquittal passed by trial Court

contending that trial Court has committed serious error in

holding that Ex.P.5 is insufficiently stamped under Section 33 of

the Karnataka Stamp Act and the same is liable to be

impounded. The trial Court has also recorded improper

reasonings in holding that complaint is not maintainable

without impleading proprietorship concern as party to the

proceedings. The trial Court inspite of the documents Exs.P.5,

12 and 13 were being marked without any objection, has

committed serious error in holding that complainant has failed

to prove source of income to advance loan of Rs.14 lakhs to the

accused.

The

approach

and

appreciation

of

oral

and

documentary evidence by trial Court cannot be legally

sustained. Therefore, prayed for allowing the appeal and to set

aside the order of the trial Court. Consequently, to convict the

accused for the offence punishable under Section 138 of the

Negotiable Instruments Act (for short ‘the N.I.Act’).

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7.

In response to notice of appeal, accused appeared

through counsel. Heard the arguments of both sides.

8.

On careful perusal of oral and documentary

evidence placed on record by the parties, it would go to show

that accused in lawful discharge of duty issued two cheques

dated 06.05.2012 bearing Nos.944978 and 944980 for

Rs.7 lakhs each, drawn on Vijaya Bank, S.M.E., Gokul road,

Hubballi, Ex.P.1 and Ex.P.2. The said cheques were presented

by complainant through his banker SBM, Deshpande nagar,

Hubballi, in October, 2012. The said cheques were dishonoured

vide bank endorsement ‘opening balance insufficient’ dated

16.10.20