The complainant-appellant has filed this appeal under

Section 378(4) of the Code of Criminal Procedure, 1973 (for

short 'Cr.P.C.'), praying to set aside the judgment and

order

of

acquittal

dated

05.05.2017

passed

in

C.C.No.164/2007 by learned JMFC, Muddebihal (for short

'Trial Court').

2.

For the sake of convenience, the parties are

referred to as per their ranking before trial Court. The

appellant is complainant and respondent is accused.

3.

The brief facts of the complainant's case are as

under:

The complainant filed a private complaint under

Section 200 of Cr.P.C., for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881 (for short

'N.I. Act'), contending that, the accused had borrowed loan

of Rs.5,00,000/- from the complainant and in consideration

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thereof, accused issued cheque bearing No.398767 dated

16.08.2006 drawn on Sri Siddeshwar Co-operative Bank

Limited, Vijayapura, in favour of complainant, said cheque

was presented for encashment, but, returned with shara

'account closed', thus, on 16.02.2007, complainant issued

legal notice calling upon the accused to pay amount due

under the cheque, but, accused neither reply to the legal

notice nor paid amount due under the cheque, hence,

complainant filed a private complaint under Section 200 of

Cr.P.C. for the offence punishable under Section 138 of N.I.

Act.

4.

After institution of the complaint, the Trial Court

recorded the sworn statement of the complainant, took

cognizance under Section 190(1)(a) of Cr.P.C., secured the

presence of accused and recorded plea of accused; accused

pleaded not guilty and claimed to be tried.

5.

The complainant in order to prove his case,

examined himself as PW.1 before Trial Court and got

marked the documents as Exs.P1 to P11, the complainant

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also examined his son Ganesh as PW.2. The accused was

examined under Section 313 of Cr.P.C. and his answers

were recorded. In order to rebut the claim of complainant,

accused himself examined as DW.1 and he also got marked

10 documents as Exs.D1 to D10.

6.

On the basis of the oral and documentary

evidence, the Trial Court acquitted accused for the offence

punishable under Section 138 of N.I. Act, holding that, the

complainant has failed to prove the ingredients of Section

138 of N.I. Act.

7.

Aggrieved by the judgment of acquittal passed

by the Trial Court, the complainant has filed this appeal

contending that the judgment of acquittal passed by the

Trial Court is not in accordance with law; the complainant

proved the requirements of Section 138 of N.I. Act, as

accused admitted issuance of cheque - Ex.P1 and his

signature on Ex.P1, service of legal notice upon him; the

Trial Court ought to have drawn presumption available

under Section 139 of N.I. Act and convicted the accused.

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But, the Trial Court held that, the alleged transactions are

not established and the complainant had no capacity to

lend loan and the amount due is not legally recoverable

debt, accordingly, acquitted the accused without drawing

presumption available under Section 139 of N.I. Act. It is

contended that, the complainant has discharged initial

burden casted upon him, but, the accused has not

discharged the burden. The Trial Court has wrongly held

that, the complainant had no capacity to lend loan to

accused, but, the complainant has placed sufficient material

to

show

that,

complainant

contributed

a

sum

of

Rs.1,22,000/-

and

his

son

contributed

a

sum

of

Rs.3,88,000/- and in all, the complainant paid a sum of

Rs.5,00.000/- to the accused. In fact, the complainant and

his son are Medical Practitioners by profession, they have

sufficient income and source, as on the date of transaction.

The Trial Court has wrongly held that, accused has handed

over the cheque in question to Ayyappa Kambi, who is none

other than father-in-law of PW.2, but, Ayyappa Kambi has

misused the cheque and handed over the same to

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complainant. But, no complaint has been lodged by

accused ag