The appellant/complainant has preferred this

appeal against the judgment of acquittal dated 04.08.2011

passed in C.C.No.1030/2009 by the Court of Prl. Senior

Civil Judge & CJM, Davangere.

2.

For the sake of convenience, the parties in this

appeal are referred to as per their status and rank before

the Trial Court.

3.

The case of the complainant is that accused is

the proprietor of M/s. Banaras Sughanda House herein

after referred to a "Firm" and claims that earlier it was a

partnership Firm between the accused and his brother M.

Ishaq Banarasi. Further, he claims that the accused had

business transaction with him and the accused has availed

credit facility of Rs.8,00,000/- (Rupees Eight lakhs only),

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and in the meanwhile, partner of the accused by name M.

Illias Banarasi, went out of the partnership and the

accused continued the business of the Firm as a sole

proprietor.

He

further

claims

that

the

accused

acknowledged

the

debt

by

executing

a

letter

of

undertaking dated 12.12.2003 by assuring that he will

make payment towards the dues from time to time and in

pursuance of the said assurance, the accused issued

cheque for Rs.50,000/- and for Rs.2,00,000/- respectively

drawn on State Bank of Hyderabad Hubli Branch in his

favour. When the complainant presented the same to the

Bank for encashment, the cheque was returned unpaid

with shara as 'insufficient funds' and thereafter, legal

notice was issued to the accused calling upon him to pay

the cheque amount. Since the accused has failed to repay

the cheque amount within the stipulated period, the

complainant has lodged the complaint under Section 200

of Cr.P.C. before the learned JMFC-II Court, Davangere

against the accused for the commission of offence

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punishable under Section 138 of Negotiable Instruments

Act. (hereinafter referred to as 'N.I. Act' for short).

4.

The Trial Court took cognizance against the

accused for the commission of alleged offence and the

case

was

registered

in

C.C.No.2222/2004.

The

complainant also claims that on 31.01.2005, he presented

the second cheque for encashment and even on that

occasion also, the cheque issued by the accused was

returned unpaid with the shara 'insufficient funds'. Then

the legal notice was issued by the accused. Even after

issue of legal notice, the accused has failed to repay the

cheque amount. Hence, the complainant has lodged

complaint under Section 200 of Cr.P.C. against the

accused for the commission of offence punishable under

Section 138 of N.I. Act. The Trial Court took cognizance of

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

the case was registered in C.C.No.1030/2009. In

pursuance of summons, the accused has appeared before

the Trial Court and was enlarged on bail and his plea was

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recorded and pleaded not guilty. The complainant got

examined himself as PW.1 and got marked 8 documents

as Exs.P1 to 8. On closure of prosecution evidence,

statement of the accused under Section 313 of Cr.P.C. was

recorded. The accused has adduced his defence evidence

and examined himself as DW.1 and examined the Manager

of the Bank as DW.2. On hearing the arguments, the Trial

Court has passed the judgment of acquittal. Being

aggrieved by the impugned judgment of acquittal, the

appellant/complainant has preferred this appeal.

5.

Learned counsel for the appellant submits that

the appellant has preferred this appeal against the

judgment of acquittal passed by the Trial Court. He further

submits that the Trial Court has acquitted the accused only

on the ground that there is no legally recoverable debt.

Now in order to substantiate his case, he has filed

application in I.A.No.1/2011 to produce the relevant

documents which are required to be adjudicated the

matter in dispute. Hence, he sought to allow the said

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application and remand the matter to the Trial Court for

fresh consideration.

6.

As against this, learned counsel for the

respondent

has

submits

that

Ex.P1-Cheque

dated

29.11.20