JUDGMENT

Appellant/complainant feeling aggrieved by judgment of Trial Court on the file of XVI Additional Chief Metropolitan Magistrate, Bengaluru City, SCCH-14, in C.C.No.9723/2013, dated 07.12.2015, preferred this appeal.

2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

3. Heard the arguments of both sides.

4. After hearing arguments of both sides and on perusal of Trial Court records, so also, the impugned judgment under appeal, the following points arise for consideration:

1) Whether the impugned judgment under appeal passed by Trial Court in acquitting the accused for the offence punishable under Section 138 of N.I.Act is perverse, capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. On careful perusal of oral and documentary evidence placed on record, it would go to show that the complainant and accused are well known to each other. Accused approached the complainant in the month of April 2012 for hand loan of Rs.20 Lakhs for his personal reasons. Complainant advanced the said amount to accused in the third week of April 2012. Accused on the date of availing above said loan agreed to repay the same within a period of nine months and has issued two post dated cheques bearing No.803696 and 803697 dated 08.02.2013, Exs.P1 and P2, respectively, drawn on State Bank of Hyderabad, Rajajinagar Branch, Bengaluru for a sum of Rs.10 Lakhs each. Complainant presented both the cheques for collection through his Banker - State Bank of Mysore, Service Branch, Prashanth Nagar, Bangalore and the same were dishonoured as “Funds Insufficient” vide endorsement dated 30.03.2013, Exs.P3 and P4, respectively. Complainant issued demand notice dated

09.04.2013 – Ex.P5 through RPAD. The postal receipt is produced at Ex.P6. The demand notice is duly served to the accused vide acknowledgment card Ex.P7 dated 12.04.2013. Accused has replied to the demand notice dated 29.04.2013, Ex.P8 and denied that he has borrowed hand loan of Rs.20 Lakhs from the complainant covered under two cheques – Exs.P1 and P2. Accused has not paid the amount covered under Exs.P1 and P2. Therefore, Complainant has filed complaint on 24.05.2013. If the above referred documents are perused and appreciated with the oral testimony of PW.1, then it would go to show that complainant has complied with all the necessary legal requirements in terms of Section 138(a) to (c) of Negotiable Instruments, Act, 1881 (hereinafter for brevity referred to as “N.I.Act”). Complainant within a period of one month from the date of accrual of cause of action, has filed the complaint in terms of Section 142(1)(b) of N.I.Act. Complainant has discharged initial burden of proving that both the cheques in question Exs.P1 and P2, were issued for lawful discharge of debt and the same were dishonoured for “Insufficient Funds” in the account of accused, so also complied the legal requirements. Therefore, statutory presumption in terms of Sections 118 and 139 of the NI Act will have to be drawn in favour of the complainant.

6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance of cheque with signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given by way of security and same has been misused by complainant is not tenable.

7. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-

" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in tha