J U D G M E N T

Being aggrieved by the dismissal of complaint filed by him against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I Act'), complainant has filed this appeal under Section 378 (4 ) of Cr.P.C.

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 family of accused are acquainted with each other for the past several years. During 2008, the husband of accused late Dr Manoj M borrowed hand loan of Rs.10 lakhs to improve his clinic and for personal urgent need. Complainant extended the said loan through cheques for Rs.5 lakhs each dated 11.08.2008. In pursuance of the same, Dr Manoj M executed agreement dated 11.8.2008. Acknowledging the receipt of the hand loan and promising to repay the same within two years. He also executed an On Demand Promissory Note and Consideration Receipt dated 11.08.2008. However, he failed to repay the amount.

3.1 It is further case of the complainant that again Dr Manoj M, approached the complainant for further loan of Rs.10 lakhs to improve his clinic and for personal exigency. Accordingly complainant extended further sum of Rs.10 lakhs and in this regard, Dr Manoj M executed agreement dated 17.05.2010 agreeing to repay the loan with interest at 3% per month. However, Dr Manoj M, defaulted repayment and on repeated request and demand he issued cheque dated 12.12.2012 for Rs.10,00,000. However, on presentation, it came to be dishonoured as "Account closed".

3.2 It is further case of the complainant that he came to learn that Dr Manoj died on 22.08.2011, leaving behind the accused and others as legal heirs. In pursuance to the repeated request and demand made by the complainant, accused issued cheque dated 13.12.2012 for Rs.10 lakhs towards partial payment of the amount due from her husband. However, when complainant presented the said cheque for realisation, it was returned dishonoured with endorsement "Funds insufficient. In this regard, the complainant got issued legal notice dated 08.03.2013. Though duly served, the accused has neither paid the amount due nor sent any reply and hence the complaint.

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

5. In order to prove the allegations against accused, the complainant has examined himself as PW-1 and relied upon Ex.P1 to 12.

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

7. Accused has not led any oral evidence, but got marked portion of Ex.P1 as Ex.D1.

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

9. Aggrieved by the same, the complainant has filed this appeal, contending that the impugned judgment and order is bad in law and is contrary to the weight of the evidence, both oral and documentary placed by the complainant on record. The trial Court has failed to appreciate the contradictions in the stand taken by the accused in the reply notice and cross-examination of complainant. Having taken the stand that Dr Manoj M has repaid the amount borrowed from the complainant, the burden is on the accused to establish the same. The trial Court has not appreciated the evidence led by the parties in proper perspective and as such the findings are perverse. Ex.D1 got marked by the accused itself prove the fact that the subject cheque was issued by the accused towards partial payment of the amount due and the presumption under Section 139 of N.I Act comes into picture. The trial Court has grossly erred in disbelieving the evidence of PW-1. Viewed from any angle, the impugned judgment and order are not sustainable and pray to set aside the same, convict the accused and sentence him in accordance with law.

10. Thus, it is the definite case of the complainant that the husband of accused b