JUDGMENT

The appellant/complainant has filed this appeal under Section 378(4) of Cr.P.C. challenging the judgment of acquittal dated 30.08.2018 passed by the XVI Additional Chief Metropolitan Magistrate, Bengaluru, in CC No.2948/2015, whereby the learned Magistrate has acquitted the accused/respondent-Smt.Rajani Gururaj herein of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, N.I. Act’).

2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

3. The brief factual matrix of the case are that, complainant-Sri. Jitendra Kumar N.M. and accused-Smt. Rajani Gururaj are relatives and they are well-acquainted with each other. Out of long standing relationship and acquaintance, in the month of July 2013, the accused approached the complainant for hand loan of Rs.10.00 Lakhs for family necessities and for purchase of a site, with an assurance of repayment of the same within a period of 4 to 6 months. The complainant has paid the said amount of Rs.10.00 Lakhs in cash to the accused. After the period assured, in spite of repeated requests and demands, the accused did not repay the said amount. However, on persistent demand, the accused issued a cheque bearing No.397105 dated 20.11.2014 for Rs.10.00 Lakhs drawn on Corporation Bank, Srinagar Branch, Bengaluru. When the complainant presented the said cheque for encashment through his Banker, it was dishonoured with an endorsement ‘Funds Insufficient’. Then the complainant has got issued a legal notice to accused on 17.12.2014, which came to be duly served on accused and an evasive and vague reply was given by her. Hence, the complainant alleging that in spite of accused having knowledge that the she is not having sufficient funds in her account, has issued a cheque and thereby committed an offence under Section 138 of the N.I Act. As such, a complaint was lodged before the learned Magistrate.

4. The learned Magistrate has taken cognizance of the offences and issued process against the accused- Smt.Rajani Gururaj. The accused appeared through her counsel and was enlarged on bail. The plea of accused under Section 138 of the N.I. Act was recorded and she denied the same.

5. The complainant was examined as PW.1 and he placed reliance on 08 documents marked at Exs. P1 to P8. During cross-examination of PW.1/complainant, Exs. D1 & D2 were got marked, by way of confrontation. Then the statement of accused under Section 313 of Cr.P.C., was recorded to enable her to explain the incriminating evidence appearing against her in the case of prosecution. But, the case of accused is of total denial and however, she put-forward the defence that, she had availed loan from the wife of the complainant and at that time, blank cheques were obtained as security, which were misused.

However, the accused has not led any oral evidence in support her defence.

6. Heard the arguments advanced by the learned counsel for the appellant/complainant and the respondent/accused. Perused the records.

7. Learned counsel for the complainant/appellant would contend that, the cheque and signature on the cheque have been admitted by the accused and therefore the presumption under Section 139 of the N.I. Act is in favour of the complainant and the accused has failed to rebut the said presumption by leading cogent evidence. Learned counsel would contend that, the accused has not entered into the witness box to substantiate her defence and the evidence clearly discloses that the complainant has advanced the loan of Rs.10.00 Lakhs and the cheque was issued towards discharge of the legally enforceable debt. The learned counsel would also contend that the learned Magistrate has ignored all these aspects including the presumption available under Section 139 of the N.I. Act. He would contend that on the assumption the learned Magistrate has acquitted accused/respondent, which has resulted in miscarriage of justice and hence,