This

revision

petition

is

filed

challenging

the

judgment dated 27.3.2015, passed by the Addl. District

and Sessions Judge, Gadag, in Crl.A.No.47/2015, wherein

the appeal came to be allowed and the judgment of

conviction and order of sentence dated 30.10.2014, passed

by

the

Senior

Civil

Judge

and

JMFC,

Ron,

in

C.C.No.213/2013, is set aside and the appellant/accused is

acquitted for the offence punishable under section 138 of

the Negotiable Instruments Act, 1881.

2.

The revision petitioner was complainant before

the trial Court and respondent is accused. They will be

referred as complainant and accused as per their

respective ranks before the trial Court for convenience in

this revision petition.

3.

The complainant filed a complaint before the

JMFC Court contending that the accused is his relative and

accused was in need of money for his domestic needs.

3

Therefore, accused borrowed a hand loan of Rs.3,00,000/-

from complainant and assured that he will repay the same

within 5-6 months. When the complainant requested the

accused after five months to return the money as agreed,

the accused issued a cheque bearing no.011285 for

Rs.3,00,000/-

dated

22.4.2010

drawn

on

S.S.K.Co-operative Credit Society, Ilkal, in the name of the

complainant. Then the complainant presented the cheque

with the banker. The same was returned dishonoured with

an endorsement ‘drawer stopped payment’. Then the

complainant issued a statutory legal notice on 19.8.2010,

which was served upon the accused on 21.8.2010. He has

given a false reply and not repaid the amount. Therefore,

the complainant lodged a complaint stating that the

accused has committed the offence punishable under

section 138 of the Negotiable Instruments Act, 1881.

4.

Before the trial Court, the complainant himself

got examined as PW.1 and also got examined Manager of

the Bank as PW.2. Eight documents were marked as

Exs.P.1 to P.8. The accused has not adduced any defence

4

evidence nor any documents were marked on his behalf.

After hearing the arguments, the learned JMFC convicted

the accused for the offence punishable under section 138

of the Negotiable Instruments Act, 1881 and sentenced the

accused to undergo simple imprisonment for six months

and ordered Rs.5,00,000/- to be paid as compensation

under Section 357(3) of Cr.P.C. and in default to pay the

compensation amount, to undergo simple imprisonment for

a period of three months. Aggrieved by the same, the

accused preferred appeal before the learned District and

Sessions Judge, wherein the learned Sessions Judge after

hearing the parties set aside the said judgment of

conviction and order of sentence by the impugned order,

which is now assailed in this revision.

5.

Heard Shri N.J.Appannanavar, the learned

counsel for the petitioner and Shri S.H.Mittalkod, the

learned counsel for the respondent.

6.

The learned counsel for the petitioner argued

that the learned Sessions Judge has erred in appreciating

the evidence in a proper perspective. Though the signature

5

and cheque are admitted by the accused, and he has

issued notice, the same is not properly appreciated by the

learned Sessions Judge. Both the parties are known to

each other. The appellate Court committed error in

assessing the evidence of complainant. PW.1 has got a

hand loom business and he has got a financial capacity to

pay such amount. The learned Sessions Judge instead of

confirming the judgment of conviction has wrongly

acquitted the accused which needs to be set aside.

7.

Against this, the learned counsel for the

respondent Shri S.H.Mittalkod argued that the learned

Sessions Judge has rightly appreciated the evidence and

the complainant has failed to prove that he has capacity to

lend the said amount. In fact the cheque was lost by this

accused/respondent. Accordingly he has given a reply

notice Ex.P.8 to show that he lost the cheque in a hotel

near Gajendragad. He has intimated the bank to stop

payment. It is also contended that there is a dispute

between the complainant