Being aggrieved by dismissal of the complaint filed by

her under Section 200 Cr.P.C, alleging offence punishable

under Section 138 of N.I.Act, complainant has filed this

appeal under Section 378(4) of Cr.P.C against the accused.

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 is

her relative i.e., her sister's husband. For his legal

necessity i.e., to repay the loan incurred by him for

purchase of the house, during July 2008 accused requested

the complainant to advance hand loan of Rs.3.5 lakhs.

Agreeing for the same, on 16.08.2008, complainant

advanced a sum of Rs.3.5 lakhs to the accused. In this

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regard accused issued a post dated cheque No.664404 by

specifying the date 12.01.2010. Along with it, he also

handed over the original sale deed of the house, which he

had purchased. Accused received the said amount in the

presence of witnesses and agreed to repay the same with

interest at 18% p.a. Though for 5-6 months, he paid

interest regularly, subsequently he defaulted.

3.1. When questioned by the complainant, he gave

evasive

reply.

However,

subsequently

he

directed

complainant to get the money by presenting the cheque.

When complainant presented the cheque for encashment, it

was returned dishonored on the ground of insufficiency of

funds. Intimating the same, complainant got issued a legal

notice. Though the legal notice is duly served on the

accused, he has failed to pay the amount due under the

cheque. He has also not sent any reply to the legal notice.

Without any alternative, complainant has chosen to file the

complaint.

4.

After due service of notice, accused has

appeared through counsel and contested the matter.

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5.

He pleaded not guilty and claimed trial.

6.

In order to prove the allegations made against

the accused, complainant got herself examined as PW-1

and one witness as PW-2. She has relied upon Ex.P1 to 6.

7.

During the course of his statement under

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

evidence.

8.

In support of his defence accused has examined

himself as DW-1 and relied upon Ex.D1 to 5.

9.

Vide the impugned judgment and order, the trial

Court dismissed the complaint, on the ground that

complainant has failed to prove her financial capacity to

lend Rs.3.5 lakhs to the accused; on the other hand

accused has proved that the cheque in question was lost in

the house of complainant and misusing the same,

complainant has filed the complaint; the evidence of PW-2

Shivanna is not reliable.

10.

Aggrieved by the impugned judgment and

order, complainant has filed this appeal contending that

impugned judgment and order is not maintainable either in

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law or on facts and liable to be set aside. When accused

has not chosen to send reply to the legal notice and having

regard to the fact that the cheque belongs to the accused

and signature therein is not disputed by him, the trial Court

ought to have raised presumption under Section 118 and

139 of the N.I.Act that the cheque was issued in discharge

of legally recoverable debt or liability. The trial Court has

committed serious illegality by placing burden on the

complainant to prove that the cheque in question was

issued by accused towards discharge of legally recoverable

debt or liability.

10.1 The trial Court has not appreciated the fact that

although accused has alleged that complainant's son had

committed theft of the cheques, he has not chosen to file

any complaint to the police. At least he could have

intimated the Banker about the loss of cheques and

requested to stop payment. In the absence of the same,

the trial Court has erred in dismissing the appeal. The

findings of the trial Court are contrary to the evidence

placed on record and as such perverse and calls for

interference by this Court.

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11.

In support of his arguments, learned counsel for

complainant has relied upon the following decisions:

(i) M.S.Sathyanarayana Vs. Lingaraje Urs

AI