JUDGMENT

Being aggrieved by the dismissal of the complaint filed by him under Section 200 Cr.P.C against the respondent/accused for the offence punishable under Section 138 of Negotiable Instrument (for short "N.I. Act"), appellant who is complainant has filed this appeal under Section 378(4) of Cr.P.C.

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 he and accused are friends and because of this acquaintance, accused sought financial assistance in a sum of Rs.2,00,000/- with an assurance of repayment within three months. Accordingly, on 24.04.2013, complainant has advanced a sum of Rs.2,00,000/- to the accused by cash. In this regard he executed an on demand promissory note and consideration receipt. However, accused failed to repay the loan and on demand issued cheque dated 27.07.2013, with an assurance of prompt realization. However, on presentation the cheque was dishonoured with endorsement "Account closed". Complainant got issued legal notice dated 21.08.2013. Despite due service, the accused has neither paid the amount due nor sent any reply, leading to the filing of the complaint.

4. The accused appeared before the trial Court and contested the matter by pleading not guilty.

5. In order to prove the allegations against the accused, complainant examined himself as PW-1 and relied upon Ex.P.1 to 5.

6. During the course of his statement, accused has denied the incriminating evidence.

7. Accused has examined as DW-1 and one witness as DW-2. He got marked Ex.D.1 to 3.

8. Vide the impugned judgment and order, the trial Court acquitted the accused and dismissed the complaint.

9. Being aggrieved by the same, complainant is before this Court, contending that the impugned judgment and order is against law, patently illegal, ex-farcies and contrary to the material evidence and documents placed on record. The trial Court has erred in not raising presumption under Section 139 of the N.I.Act. The trial Court has erred in accepting the defence of the accused that, during 2005 he had availed loan of Rs.1,00,000/- and had given three blank cheques and though he has repaid the loan, the cheques were not returned and misusing one of them, complaint is filed. The accused has not led any evidence in support of his defence. The testimony of DW-2 is not reliable. The trial Court has also erred in not accepting the contention of complainant that the credits made by accused to the account of complainant are in respect of building materials sold by him. The accused has failed to rebut the statutory presumption operating in favour of the complainant. Viewed from any angle the impugned judgment and order are not sustainable and pray to allow the appeal, convict the accused and sentence him in accordance with law.

10. In support of his argument, learned counsel for appellant has relied upon the following decisions:

(i) Uttam Ram Vs. Devinder Singh Hudan and Anr. (Uttam Ram)1 (ii) M/s Shree Daneshwari Traders Vs.

Sanjay Jain and Anr. (Daneshwari Traders)2 (iii) K.S.Ranganatha Vs. Vittal Shetty (K.S.Ranganatha)3 (iv) Kalamani Tex and Anr Vs. P.Balasubramanian (Kalamani Tex)4 (v) Kishan Rao Vs. Shankargouda (Kishan Rao)5

1 (2019) 10 SCC 287

2 AIR 2019 SC 4003

3

2022 (1) KCCR 1 (SC)

4

(2021) 5 SCC 283

2018(2) Kar.L.R 673 (SC)

(vi) T.P.Murugan (Dead) Vs. Bojan (T.P.Murugan)6 (vii) Rohitbhai Jivanlal Patel Vs. State of Gujarat and Anr. (Rohitbhai Jivanlal)7

11. On the other hand, learned counsel for accused supported the impugned judgment and order and prays to dismiss the appeal.

12. Heard elaborate arguments of both sides and perused the records.

13. Thus, the accused admit that the cheque in question is drawn on his account maintained with his banker and bear his signature. Therefore, the presumption under Sections 118 and 139 of the N.I Act is attracted, placing the initial burden on the accused to rebut the same. However, the accused has taken a specific defence that in 2005, he