JUDGMENT

1. This appeal is filed praying to set-aside the judgment and order dated 06.09.2016 passed in C.C.No.8404/2014 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru City and convict the respondent – accused and award compensation to the appellant - complainant.

2. Heard learned counsel for the appellant. Counsel for the respondent was not present on 29.05.2024 and

30.05.2024 when the matter was heard.

3. The appellant was the complainant and the respondent was the accused in C.C.No.8404/2014 on the file of XXII Additional Chief Metropolitan Magistrate, Bengaluru.

4. Facts in brief are that; the respondent – accused had borrowed a sum of Rs.3.00 lakhs from the appellant – complainant on 11.01.2013 to meet the medical expenses of her husband and educational expenses of her daughters, agreeing to repay the same within six months. The respondent – accused had issued a cheque – Ex.P1 for repayment of the said hand loan for a sum of Rs.3.00 lakhs. The appellant – complainant presented the said cheque to his banker and it was returned with shara “Account Dormant” and “funds insufficient”. The complainant got issued a legal notice demanding the cheque amount to the respondent. Inspite of service of notice, the respondent – accused did not repay the cheque amount. Therefore, the appellant – complainant has initiated the proceedings against the respondent – accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “the Act”).

5. The complainant has been examined as PW1. The Deputy Commissioner of Police was examined as PW2 and got marked Exs.P1 to P9. The respondent has been examined as DW1 and her husband Sri.S.B.Muniyappa has been examined as DW2 and got marked Exs.D1 to D4. The Trial Court after hearing the parties and appreciating the evidence on record has acquitted the respondent –

accused for the offence under Section 138 of the Act.

6. Learned counsel for the appellant would contend that Ex.P7 is the pass book of the bank account of the appellant – complainant. In its relevant entries - Ex.P7(a) would indicate that the appellant – complainant has withdrawn a sum of Rs.3.00 lakhs from the Bank on 10.01.2013 and as on the date of hand loan ie., 11.01.2013, he had cash of Rs.3.00 lakhs, which he lent it to the respondent – accused. The said aspect establishes that the appellant – complainant had sufficient funds and capacity to lend money to the respondent – accused. Inspite of the same, the learned Magistrate has made an erroneous observation that the appellant – complainant had bank balance of Rs.92,151/- on the date of lending the loan and he having paid a sum of Rs.3.00 lakhs to the accused is doubtful. He contends that DW1 – accused had admitted her signature on Ex.P1 – cheque. Ex.P1 – cheque has been issued for making payment of legally enforceable debt and a presumption has to be raised under Section 139 of the Act. He contends that even the respondent – accused has executed on demand promissory note and consideration receipt as per Ex.P2 for a sum of Rs.3.00 lakhs. The defence of the accused that the cheque given by her to one Sri.B.M.Umesh has been misused by the appellant – complainant, has not been established and mere filing of a private complaint against this appellant and Sri.B.M.Umesh in that regard will not prove the said aspect, unless and until the appellant and the said Sri.B.M.Umesh are held guilty in the said criminal proceedings. Even DW2, husband of respondent – accused has deposed that Ex.P1 is the cheque of his wife which he had given it to Sri.B.M.Umesh. The said aspect itself would establish that Ex.P1 – cheque bears the signature of the respondent – accused who is the wife of DW2. He contends that without considering all these aspects, the learned Magistrate has swayed away, only considering the private complaint filed by the respondent – accused and her husband against the appellant and Sri.B.M.Umesh and the learned Magistrate