Being aggrieved by the dismissal of complaint filed

by him against respondent accused for the offence

punishable

under

Section

138

of

the

Negotiable

Instruments Act, 1881 (for short, ‘N.I. Act’), appellant

who is complainant has filed this appeal under Section

378(4) of the Code of Criminal Procedure (for short,

‘Cr.P.C.).

2.

For the sake of convenience, the parties are

referred to by their rank before the trial Court system.

3.

It is the case of the complainant that he and

accused are known to each other. On 12.11.2008,

accused borrowed a sum of Rs.5 lakhs for development

of his business. Towards repayment of the same,

accused issued a cheque No.244154 for Rs.5 lakhs drawn

on

State

Bank

of

Mysore,

Gangenahalli

Branch,

Bangalore-32. On presentation, it was dishonoured for

3

want of sufficient funds. Complainant got issued legal

notice. Accused has not received it intentionally. He has

not sent any reply and he has also not repaid the amount

due under the cheque. Hence, the complaint.

4.

After due service of summons, accused

appeared before the trial court and contested the matter.

He pleaded not guilty and claimed trial.

5.

In order to prove his case, complainant

examined himself as PW1, one witness as PW2. He relied

upon Exs.P1 to 22.

6.

During

the

course

of

his

statement,

complainant denied the incriminating evidence led by the

complainant.

7.

Accused examined himself as DW1. He relied

upon Ex.D1.

8.

Vide the impugned judgment and order, the

trial court dismissed the complaint by holding that the

complainant has failed to prove that accused borrowed

Rs.5 lakhs from him and that he had the financial

4

capacity to lend the said amount. On the other hand by

preponderance of probabilities, the accused has proved

that the cheque in question was issued by the accused to

the son-in-law of complainant by name Harish in respect

of loan of Rs.50,000/- borrowed by his son-in-law

Chandrashekhar Singh from Harish. Though the said loan

was repaid, the cheque was not returned, and through

the complainant, he has got filed a false complaint to

make unlawful gain.

9.

Aggrieved by the impugned judgment and

order, complainant has filed this appeal contending that

it is passed without application of mind. It is patently

erroneous and appears to be partially dealt and passed

hurriedly. The trial court has erred in holding that the

complainant has failed to prove his financial capacity and

that PW2-Chika Siddaiah was not the person present

when the loan was advanced. The trial court has also

erred in not accepting the case of the complainant that

he was having the money acquired by the sale of

property through Ex.P1. Though the complainant has

5

proved his case beyond reasonable doubt, the trial court

has erred in dismissing the complaint and prays to allow

the appeal, set aside the impugned judgment and order,

convicted the accused and sentenced him in accordance

with law.

10. In support of his arguments, the learned

counsel for complainant has relied upon the following

decisions.

i.

T.Vasanthakumar

V/s

Vijayakumari

(Vasanthakumar)¹

ii.

T.P.Murugan

(dead)

through

legal

representatives V/s Bojan (Murugan)²

iii.

Kishan Rao V/s Shankargouda (Kishan

Rao)³

iv.

Rohitbhai Jivanlal Patel V/s State of

Gujarat and another (Rohitbhai)⁴

v.

Bir Singh V/s Mukesh Kumar (Bir Singh)⁵

1 (2015) 8 SCC 378

2 (2018) 8 SCC 469

3 AIR 2018 SCC 3173

4 AIR 2019 SC 1876

5 (2019) 4 SCC 197

6

vi.

Kalamani

Tex

and

another

V/s

P.Balasubramanian (Kalamani Tex)⁶

11. On the other hand, learned counsel for

accused has supported the impugned judgment and

order and sought for dismissal of the appeal also.

12. In support of his arguments, learned counsel

for accused has relied upon the following decisions.

i.

Murtuja V/s Zakeer (Murtuja)⁷

ii.

Jayalakshmi

B.

V/s

Neelakantappa

(Jayalakshmi)⁸

iii.

Ravichandra V. V/s Rosi Line Reena Rani

(Ravichandra)⁹

iv.

Kantha Raj V/s Sham Shudin (Kantha

Raj)¹⁰

v.

M/s Paxal Surgicals, Bengaluru V/s Ashok

Kumar (Paxal Surgicals)¹¹

6 (2021) 5 SCC 283

7