This appeal is filed by the appellant/complainant

under Section 378(4)

of

Cr.P.C.

challenging

the

judgment of acquittal passed by XIII Additional Chief

Metropolitan Magistrate, Bengaluru, in CC.No.2055/2017,

dated 06.06.2019.

2.

He has also filed I.A.No.1/2019 seeking leave of

the Court under Section 378(4) of Cr.P.C. for instituting

this appeal.

3.

For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

4.

The brief factual matrix leading to the case are

that the complainant has lodged a complaint against

accused for the offence punishable under Section 138 of

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the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’)

in respect of cheque bounce. It is asserted that the

accused has availed a loan of Rs.9,50,000/- from the

complainant and in discharge of the said debt, cheque

came to be issued which was dishonoured. Hence, he filed

a complaint.

5.

The complainant was examined as PW1 and his

wife was examined as PW2 and one witness was examined

as PW3. He has placed reliance on 15 documents marked

at Ex.P1 to Ex.P15. Then the statement under Section 313

Cr.P.C. was recorded and accused denied the same.

Accused got examined himself as DW1 and placed reliance

on Ex.D1.

6.

The

learned

Magistrate

after

hearing

the

arguments and after appreciating the evidence has

acquitted the accused. Against this judgment of acquittal,

this appeal is filed.

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7.

The records disclose that the allegations of the

complainant are pertaining to advancement of a huge loan

of Rs.9,50,000/- to the accused. But interestingly, in the

complaint, nor in his examination-in-chief the complainant

nowhere asserted when exactly he has advanced the loan

amount of Rs.9,50,000/-. It is hard to accept the

contention of the complainant that he is unable to recollect

the date of advancement of such a huge loan.

8.

The accused has disputed the financial status of

the complainant and therefore, the complainant has got

examined PW2 & PW3. PW2 is the wife of the complainant

and PW3 is the friend of the complainant. PW2 claims that

she has given Rs.3,50,000/- to the complainant and PW3

claims that he has advanced a hand loan of Rs.3,00,000/-

to the complainant. What was the need of the complainant

to get such a huge amount from his wife and friend as a

hand loan and advance the same to the accused without

charging any interest is not forthcoming.

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9.

The income tax returns submitted by the

accused do not disclose that he has disclosed this amount

in his income tax returns. The document relied pertaining

to the wife of the complainant does not establish that the

complainant was having financial capacity and the amount

in the account of his wife was transferred to the account of

the accused and he withdrew it. No such evidence is

forthcoming. Considering these facts and circumstances,

the trial Court has acquitted the accused.

10. The complainant is required to prove his case

beyond all reasonable doubt. But accused is required to

prove his case only on the basis of preponderance of

probability. The accused can create a dent in the case of

the complainant and in the instant case, the accused has

created a dent in the case of the complainant. The

complainant has not discharged his burden of proving the

fact that he has advanced a huge loan of Rs.9,50,000/-.

Though the cheque and signature on the cheque have

been admitted, the presumption under Section 139 of the

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N.I. Act is not in favour of the complainant in view of

dispute regarding his financial capacity. Considering these

facts & circumstances, the view taken by the trial Court is

a possible view and the conclusion arrived by the trial

Court cannot be interfered. Hence, when there is no merits

in the case of the complainant, question of entertaining

this appeal by granting leave to the complainant does not

arise at all. Hence, I.A.No.1/2019 needs to be dismissed

and accordingly, I proceed to pass the following:

ORD