This appeal is by the complainant challenging the

acquittal of respondent/accused for the offence punishable

under Section 138 of the Negotiable Instrument Act ('N.I Act'

for short).

2.

For the sake of convenience, the parties are

referred to by their rank before the trial Court.

3.

It is the case of the complainant that accused and

others started a company by name Surya Micro Technologies

Private Limited, Bengaluru. It is a company to introduce IT

network service. Accused is the Managing Director of the

said company. Complainant was working as Marketing Chief

in the said company. He enrolled and introduced various

members to the company for the last 34 years. He was

working on fixed salary and incentive. The incentives which

complainant was entitled was not paid and in this regard he

was issued with Cash certificates dated 01.12.2003 for

Rs.27,756/- and Rs.18,99,547/-. After their maturity, he was

- 3 -

not paid with the amount due under the said certificate.

When insisted upon, accused issued a post dated 10.06.2005

cheque for a sum of Rs.19,27,303/-. When complainant

presented the same to the Bank for encashment, it was

dishonored on the ground 'Account closed'. Complainant got

issued a legal notice dated 29.12.2005 through RPAD and

also under certificate of posting. Accused has not claimed the

same, but the one sent through certificate of posting is duly

served on him. Accused has neither sent the reply nor

complied with the notice. Without any other alternative,

complainant has filed the complaint.

4.

After due service of notice, the accused has

appeared through counsel and contested the matter. He

pleaded not guilty and claimed trial.

5.

In order to bring home guilt to the accused, the

complainant has examined himself as a PW-1. He has relied

upon Ex.P1 to 30.

- 4 -

6.

During the course of his statement under Section

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

evidence.

7.

Accused

has

led

his

defence

evidence

by

examining himself as DW-1 and Manager of the Bank as DW-

2. He has relied upon Ex.D1 to 6.

8.

Vide the impugned judgment and order the trial

Court acquitted the accused.

9.

Being aggrieved by the same, the complainant is

before this Court contending that the impugned judgment

and order of acquittal passed by the trial Court is highly

illegal, arbitrary and unreasonable. The trial Court has failed

to appreciate the evidence placed on record in proper

perspective. The Cash certificates relied upon by the

complainant are signed by accused in his capacity as the

Managing Director. Though the legal notice was sent to the

address of the accused, intentionally he has not chosen to

receive it and send reply. Only at the trial he has chosen to

contend that when the cheque was signed, he was not the

- 5 -

Managing Director. The accused has not disputed his

signatures in the cheque. Consequently, presumption under

Sections 118 and 139 of N.I Act is operating against him.

However, the trial Court failed to draw the presumption. The

impugned judgment and order is liable to be set aside on

preponderance of probabilities of the case and prays to allow

the appeal.

10. On the other hand, learned counsel representing

the accused supported the impugned judgment and order

and prays to dismiss the appeal.

11. Heard arguments of both sides and perused the

record .

12. Thus, accused is being prosecuted on the ground

that in his capacity as the Managing Director of Surya Micro

Technologies Private Limited, he issued a cheque towards

payment of Rs.19,27,303/- and when the said cheque was

presented for realization, it was dishonored on the ground

'Account closed' and despite issue of legal notice, the

accused has not made arrangement for payment of the said

- 6 -

amount. The complainant has alleged that intentionally the

accused has not chosen to receive the legal notice and

managed to send it back.

13. It is pertinent to note that accused has not

disputed his address to which the legal notice was sent.