When an accused challenges the complainant's financial capacity during trial, the burden shifts back to the complainant to prove they had the means to advance the loan to trigger the presumption under Section 139 of the N.I. Act.

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT DATED 14.03.2018 PASSED BY THE XX ADDL. CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY IN C.C.NO.13840/2015 BY ALLOWING THIS APPEAL; b) CONVICT AND SENTENCE THE ACCUSED / RESPONDENT FOR THE AFORESAID OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT; c) GRANT SUCH OTHER ORDER OR ORDERS, WHICH DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 22.03.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

J U D G M E N T

This is an appeal filed by the complainant, challenging the judgment and order passed by the trial Court, dismissing the complaint filed by him against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act').

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 having known to each other since long time. During the year 2011, when complainant was making enquiries to purchase a site measuring 30' x 40' ft, accused offered to sell his site. However, when accused was not in a position to give original documents, complainant shelved the said idea. Later accused offered to sell him 15 guntas out of 27 guntas of land in Sy.No.40 of Chikkadasarahalli. After negotiation, they agreed the rate at Rs.50,000/- per gunta and out of Rs.7,50,000/- payable by the complainant, he paid Rs.3,25,000/- by way of advance.

4. However, when complainant enquired with the revenue authorities, he came to know that the said land belongs to Government and it cannot be sold. Therefore, he requested the accused to return the amount received from him. In this regard accused issued cheque dated 25.03.2015, with an assurance of prompt payment. However, when complainant presented the cheque for realisation, it was returned dishonoured with endorsement "Funds insufficient". Therefore, complainant got issued legal notice to the accused. Though it is duly served, the accused has neither chosen to pay the amount due nor sent any reply. Hence the complaint.

5. Before the trial Court, accused has appeared through counsel and resisted the case by pleading not guilty.

6. In order to prove the allegations against the accused, the complainant has examined himself as PW-1 and relied upon Ex.P1 to 16.

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. Accused has not led any defence evidence.

9. Vide the impugned judgment and order the trial Court dismissed the complaint.

10. Aggrieved by the same complainant has filed this appeal, contending that the judgment and order are opposed to law, facts and evidence on record. Through the oral and documentary evidence placed on record, the complainant has established the guilt of the accused within the four corners of the Section 138 of N.I Act. However, the accused has failed to rebut the presumption under Section 139 of N.I Act. In the light of the fact that accused admit his signature and the fact that the subject cheque is drawn on his account maintained with his banker, presumption is operating in favour of the complainant, placing the initial burden on the accused. Even the telephonic conversation