JUDGMENT

This appeal is by the complainant challenging the acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'), by the Sessions Court, by reversing the conviction imposed by the trial Court.

2. For the sake of convenience, parties are referred to by their rank before the trial Court.

3. It is the case of complainant that he and accused are co-brothers having married sisters. Complainant is a Seaman working in a Merchant Ship. In the first week of August 2004, accused requested the complainant for a hand loan of Rs.7 lakhs to meet his urgent financial commitments. Complainant agreed for the same. In the month of August 2004, complainant arranged payment of Rs.5 lakhs to the accused through his sister- in-law. In the month of November 2004, he paid Rs.1,31,000/- to the accused through his brother Ronald Monterio. Remaining Rs.69,000/- was paid by the complainant to the accused in the month of November 2004. All these payments were made through cheques. Accused promised to repay the same with interest before the end of December 2005.

3.1 However, accused failed to repay the hand loan.

Upon persistent request and demand, accused issued cheque dated 29.12.2006 for a sum of Rs.9,38,082/- towards principle of Rs.7 lakhs and interest in a sum of Rs.2,38,082/-. He assured due payment on presentation. However, when complainant presented the cheque for encashment, it was dishonoured with endorsement "insufficient funds".

3.2 Complainant got issued legal notice dated

04.01.2007. It is duly served on the accused on 06.01.2007. Instead of paying the amount due under the cheque, with an intention to evade payment, accused has sent an evasive reply, referring to some dealings which are totally false and unconnected with the present transaction and hence the complaint.

4. After due service of summons, accused appeared before the trial Court and contested the case by pleading not guilty.

5. In order to prove the allegations against accused, complainant has examined himself as PW-1 and his brother Ronald Monterio as PW-2. He has relied upon Ex.P1 to 9.

6. During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence led by the complainant.

7. On the other hand, accused has examined himself as DW-1, Manager of the drawer bank as DW-2 and one Yathiraj Shetty as DW-3. He has relied upon Ex.D1 to 6.

8. The trial Court accepted the contention of the complainant and convicted the accused and sentenced him to pay fine of Rs.10 lakhs, in default to undergo simple imprisonment for six months. The entire fine amount is ordered to be paid to the complainant by way of compensation.

9. Aggrieved by his conviction and sentence, accused approached the Sessions Court in appeal. Vide the impugned judgment and order, the Sessions Court allowed the appeal and acquitted the accused.

10. Challenging the acquittal of accused, complainant has filed this appeal, contending that the impugned judgment and order of the Sessions Court is not maintainable either in law or on facts and liable to be set aside. Since the accused has allowed the dishounour of cheque by not maintaining balance in his account, he has committed the offence punishable under Section 138 of N.I. Act. Rightly the trial Court convicted and sentenced him. However, the Sessions Court has set aside the same. The order of the Sessions Court is illegal, vague and without application of mind. Without going through the oral and documentary evidence placed on record and the judgment and order of the trial Court, the Sessions Court has acquitted the accused.

10.1 The observation of the Sessions Court at para No.14 that complainant did not give any amount to the brother and sister-in-law of complainant is contrary to the facts and circumstances and admissions given by the accused. The Sessions Court has erred in reversing the findings of the well reasoned judgment and order of the trial Court. Hav