J U D G M E N T

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

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

3. Complainant and accused are brothers. It is the case of the complainant that accused is a driver by profession. He is also doing real estate business. On 24.05.2015, accused has taken hand loan of Rs.10 lakhs from the complainant in cash to clear the hand loans raised by him from other banks for domestic purpose.

Accused promised to repay the same within a period of six months and issued a post dated 26.11.2015 cheque for Rs.10 lakhs, with an assurance that it would be honoured on presentation. However, on 26.11.2015, when he presented the cheque for realisation, it was dishonoured on the ground ‘Account closed’. When complainant brought this fact to the notice of accused, he did not choose to pay the amount. Hence, complainant got issued legal notice dated 17.12.2015. It is served on him on 18.12.2015. Instead of paying the amount due under the cheque, accused has sent an evasive reply, and hence the complaint.

4. At the trial Court, the accused appeared through the counsel 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 relied upon Ex.P1 to 18.

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

7. Accused has led defence evidence by examining himself as DW-1. He has relied upon Ex.D1 to 4.

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

9. Aggrieved by the same, the complainant has filed this appeal, contenting that the trial Court has erred in acquitting the accused. The impugned judgment and order are contrary to the evidence placed on record and as such perverse. The trial Court has erred in disbelieving the case of the complainant by ignoring the documents placed on record. The trial Court has disbelieved the case of the complainant, mainly on the ground that on 22.05.2015 and 24.05.2015, complainant and accused attended marriage and reception, respectively at Thirthahalli and therefore it was impossible for them to enter into the transaction at Bengaluru on 24.05.2015. The trial Court has also not appreciated the fact that the accused has taken inconsistent defence and failed to prove the same. The trial Court has also not appreciated the fact that accused choose to file the suit against the complainant after receiving the hand loan of Rs.10 lakhs and before that the relationship was normal. Without taking into consideration the documents produced by the complainant regarding sale of gold ornaments to pay the loan to the accused, the trial Court has committed grave error in holding that complainant had no financial capacity to lend Rs.10 lakhs to the accused. The findings of the trial Court are perverse and calls for interference by this Court and hence the appeal.

10. In support of his arguments learned counsel for complainant has relied upon the decision in Rajesh Jain Vs. Ajay Singh (Rajesh Jain)1.

(2023) 10 SCC 148: AIR 2023 SC 5018

11. On the other hand learned counsel representing accused has supported the impugned judgment and order and sought for disposal appeal also.

12. Heard elaborate arguments of both sides and perused the record.

13. Thus, it is the definite case of the complainant that he and accused are brothers and accused in order to pay the hand loan raised by him and also with the other banks borrowed hand loan of Rs.10 lakhs and issued the subject cheque which came to be dishonoured on the ground 'Account closed'. On service of legal notice, instead of paying the amount due under the cheque, the accused has sent an evasive reply taking defence.

14. On the other hand, the accused has come u