JUDGMENT

1. This appeal under Section 378(4) of Cr.PC is filed by the complainant with a prayer to set aside the judgment and order of acquittal dated 14.01.2020 passed by the Court of Prl. Civil Judge & JMFC, Gadag, in C.C.No.2371/2007, wherein the respondent has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’).

2. Heard the learned Counsel for the parties.

3. The complainant/appellant herein had initiated proceedings against the respondent herein before the Trial Court in C.C.No.2371/2017 with a prayer to convict the respondent for the offence punishable under Section 138 of the Act. It is the case of the complainant that the respondent is a subscriber to the chit conducted by the complainant and towards discharge of legally recoverable debt, the respondent had issued the cheque in question for a sum of Rs.55,452/- in favour of the complainant, and on presentation of the said cheque for realization, the same was dishonoured by the drawee bank with an endorsement ‘drawer’s signature differs’. The complainant, thereafter, issued a legal notice to the respondent and since the respondent failed to repay the amount covered under the cheque inspite of receiving the legal notice, the complainant had filed the complaint before the Trial Court against the respondent for the offence punishable under Section 138 of the Act.

4. In the said proceedings, the respondent had appeared before the Trial Court and claimed to be tried. The complainant in order to substantiate its case, had examined its legal incharge – Manjunath N.Nilugal as PW-1 and had got marked five documents as Exs.P-1 to P-5. On behalf of the defence, no evidence was led. The Trial Court, after hearing the arguments addressed on both sides, has acquitted the respondent vide the impugned judgment and order and being aggrieved by the same, the complainant is before this Court.

5. Learned Counsel for the appellant having reiterated the grounds urged in the memorandum of appeal, submits that the Trial Court was not justified in acquitting the respondent. He submits that the transaction between the appellant and respondent is not in dispute. The respondent has not raised any defence. She has neither cross-examined the complainant’s witness nor has she entered into the witness box. Therefore, the Trial Court was not justified in acquitting the respondent.

6. Per contra, learned Counsel appearing for the respondent submits that the cheque in question was dishonoured by the drawee bank with a shara ‘drawer’s signature differs’. Therefore, the presumption under Section 139 of the Act is not available against the respondent. The appellant has not discharged its burden to prove that the cheque in question was issued by the respondent towards discharge of legally recoverable debt. Accordingly, she prays to dismiss the appeal. 7. The complainant had approached the Trial Court contending that the respondent was a subscriber to the chit conducted by the complainant-company and she had received the prize amount of Rs.70,000/- from the complainant.

However, since she had not paid the monthly subscription amount, there was an overdue in her account and towards payment of same, she had issued the cheque in question for Rs.55,452/-. The said cheuqe on presentation for realization was dishonoured by the drawee bank with a shara ‘drawer’s signature differs’.

8. The presumption under Section 139 of the Act arises against the accused only in a case where the accused has not denied the signature found in the cheque and also has not denied that the cheque in question was drawn on the account maintained by the accused in the drawee bank.

9. In the case on hand, the cheque in question was dishonoured by the drawee bank with a shara ‘drawer’s signature differs’. Therefore, the presumption under Section 139 of the Act, prima facie, does not arise against the accused. In the absence of a presumption under Section 139 of the Act, the burd