This appeal is filed by the appellant-complainant

challenging the judgment of acquittal passed by the

Court J.M.F.C., (II-Court) Karwar in C.C.No.226/2009

dated 03.08.2012 for the offence under Section 138 of

Negotiable

Instruments

Act,

1881

(for

short,

hereinafter referred to as ‘N.I. Act’).

2.

For the sake of convenience, the parties

herein are referred with the original ranks occupied by

them before the Trial Court.

3.

The brief factual matrix leading to the case

are that, the complainant and accused are well

acquainted with each other. In April 2008, the

accused approached the complainant and sought for

financial assistance to the tune of Rs.50,000/- with an

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assurance that he would repay the same by the end of

April, 2008.

4.

It is further the case of the complainant

that, he has paid Rs.50,000/- in cash to the accused

in the month of April, 2008. But the accused has

failed to keep up his promise and he has issued a

cheque dated 30.07.2008 of K.D.C.C. Bank, Karwar.

The complainant has presented the said cheque on

20.10.2008 and it was dishonored for “in sufficient

funds”. Later complainant again presented cheque on

26.11.2008 and again the same was dishonored.

Then the complainant has got issued a legal notice to

the accused and the accused has replied the said

notice with untenable defence. The cheque amount

was not paid and hence, the complainant claims to

have filed the complaint under Section 200 of Cr.P.C.

5.

After lodging the complaint, the learned

Magistrate has taken cognizance of the offence.

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Sworn statement of the complainant was recorded and

the learned Magistrate has found that there are

sufficient grounds to proceed against the accused.

Hence, he has issued a process against the accused.

The accused has appeared through his counsel and

was enlarged on bail. The prosecution papers were

also furnished to the accused. The accusation was

read over and explained to the accused and the

accused pleaded not guilty.

6.

The complainant was examined as P.W.1

and he has placed reliance on 8 documents marked as

Ex.P.1 to Ex.P.8. The accused was got examined

himself as D.W.1 and he has placed reliance on 2

documents marked at Ex.D.1 and Ex.D.2. In fact

Ex.D.8 and Ex.D.1 are one and the same. After

hearing the arguments, the learned Magistrate has

acquitted the accused for the offence under Section

138 of N.I. Act by setting him at liberty. Being

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aggrieved by this judgment of acquittal this appeal is

filed.

7.

Heard

the

learned

counsel

for

the

appellant-complainant and learned counsel for the

respondent-accused. Perused the records.

8.

The learned counsel for the appellant would

contend that admittedly, the cheque belongs to the

account of the accused and signature on the cheque is

undisputed. He would also contend that, even if a

cheque is issued towards security, it attracts the

offence under Section 138 of N.I. Act and though the

accused has made a half hearted attempt to deny the

signature on the cheque, but he has not objected

while marking his signature on the cheque. There is

only a vague allegation regarding the signature on the

cheque

but

the

signature

on

the

cheque,

acknowledgement and other documents are that of

the accused and hence, he would contend that the

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presumption under Section 139 of N.I. Act ought to

have been drawn in favour of the complainant, which

is mandatory. He would contend that the accused has

taken untenable defence, which he has failed to

establish and hence, it is evident that he has failed to

rebut the presumption available in favour of the

complainant and he is liable to be convicted. As such

he would seek for allowing the appeal by setting aside

the impugned judgment of acquittal and prayed for

convicting the accused.

9.

Per contra, the learned counsel for the

accused-respondent would support the judgment of

acquittal and contended that, there is no financial

transaction between the parties, but however earlier

the accused had taken Rs.25,000/- and in this