J U D G M E N T

This appeal is by the complainant challenging the impugned judgment and order, whereby the complaint filed under Section 200 Cr.P.C for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'), against the respondent/accused came to be dismissed.

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

3. It is the case of the complainant that he and accused are family friends. In turn accused is a friend of one Ravi Shiriyanna. Accused is an architect. During the month of September 2007, accused and his friend Ravi Shiriyanna approached the complainant for hand loan of Rs.25 lakhs. Accused offered to deposit the title deeds of Ravi Shyiriyanna as security towards the loan. They offered to pay simple interest. Accordingly, Ravi Shiriyanna handed over the original title deeds of his property at Hubli/Dharwad. Believing the words of accused and out of good faith in the accused, complainant advanced loan of Rs.25 lakhs on 03.09.2007. However, accused and Ravi Shiriyanna failed to repay the amount within the stipulated time. After repeated request and demand, accused informed the complainant that Ravi Shiriyanna has filed a false complaint alleging that the title deeds are lost and on the basis of the said false complaint, he has raised loan against the same property in some banks. Both accused and Ravi Shiriyanna have played fraud on the complainant.

4. It is further the case of the complainant that thereafter accused undertook to pay the amount due along with interest and executed agreement dated 11.09.2008. He issued a cheque for Rs.32.5 lakhs assuring that he would pay the amount due within one year, failing which, he is at liberty to present the cheque and recover the amount. Since the accused failed to pay the amount due, complainant presented the cheque on 22.10.2009 through his Banker. However, it was returned dishonoured with endorsement ‘Exceeds arrangement’. Therefore, complainant got issued legal notice dated 26.10.2009 and it is duly served on the accused. However, the accused has neither sent any reply nor paid the amount and hence, the complaint.

5. After due service of summons, accused appeared and resisted the case by pleading not guilty.

6. In order to prove the allegations against accused, complainant has examined himself as PW-1 and got marked Ex.P1 to 11.

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

8. In fact, accused has led defence evidence by examining himself as DW-1 and one witness as DW-2. He relied upon exhibits D1 to 4.

9. Vide the impugned judgment and order, the trial Court has dismissed the complaint mainly on the ground that the cheque was presented for realization beyond the period of its validity and therefore, the complaint is not maintainable.

10. Aggrieved by the same, the complainant is before this Court, contending that the order under challenge is contrary to law, facts and evidence on record. The entire approach of the trial Court is perverse, arbitrary and manifestly illegal. The trial Court erred in holding that the validity of cheque issued by the accused was six months and now the validity of the cheque is three months. Since the agreement entered into between the complainant and accused is dated 11.09.2008 and the cheque was issued on the same day, therefore, the cheque was presented after a period of one year and as such, it was barred. The trial Court has failed to appreciate the fact that though the cheque was issued on 11.09.2008, it was a post dated 30.08.2009 cheque. Therefore, it was presented within the period of its validity. Moreover, the cheque is dishonoured not on the ground that it is presented beyond the period of its validity, but on the ground "Exceeds arrangement". This fact is not appreciated by the trial Court.

11. The trial Court has also not appreciated the fact that accused has not s