This is an appeal filed under Section 378(4) of

Criminal Procedure Code, 1973 (8Cr.P.C.9 for short) by the

appellant/complainant challenging the judgment of acquittal

passed by the XXII Additional Chief Metropoliton Magistrate,

Bangalore City in CC No.13136/2012 dated 24.03.2016,

whereby

the

learned

magistrate

has

acquitted

the

accused/respondent herein for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 ( 8N.I.

Act9 for short).

2.

For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3.

The brief factual matrix leading to the case are

that, the complainant and accused are well conversed with

each other since many years and the accused had borrowed

a sum of Rs.6,00,000/- from complainant on 10.12.2010 by

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way of cash. It is also asserted that the accused had

demanded hand loan only to be paid in cash on the ground

that he has to repay the other hand loans borrowed by him

from others. The accused has assured the complainant that

he would repay the above said sum within six months and

when complainant demanded repayment of the amount in

June 2011, accused has issued a cheque for Rs.6,00,000/-

dated 14.07.2011 drawn on ING Vysya Bank Ltd. and when

the same was presented it was bounced on the ground that

account was closed. It is also alleged that thereafter the

complainant issued legal notice to the accused and notice

returned with an endorsement that intimation delivered and

accused has neither paid the amount nor responded and

hence, he has filed a complaint under Section 200 of Cr.P.C.

alleging that accused has committed an offence under

Section 138 of NI Act.

4.

Learned magistrate after recording the sworn

statement has taken cognizance and issued process against

the accused. The accused has appeared through his counsel

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and was enlarged on bail. The plea under Section 138 of NI

Act was read over and explained to him and he pleaded not

guilty. The complainant got examined as Pw.1 and two

witnesses were examined on his behalf as Pw.2 and Pw.3.

After conclusion of evidence of the complainant, the

statement of accused under Section 313 of Cr.P.C. was

recorded to enable him to explain the incriminating

evidence appearing against him in the case of the

prosecution/complaint. The case of the accused is of total

denial. He himself got examined as Dw.1 and further two

witnesses were examined on his behalf as Dw.2 and Dw.3.

The complainant has placed reliance on 7 documents

marked at Ex.P1 to Ex.P7 while accused placed reliance on

6 documents marked as Ex.D1 to Ex.D6.

5.

After hearing the arguments advanced by both

the parties,

the

learned

Magistrate

found

that

the

complainant has failed to establish that cheque was issued

towards legally enforceable debt and further held that

complainant has failed to prove the accused has committed

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an offence under Section 138 of NI Act and acquitted him of

the said charge.

6.

Being aggrieved by this judgment of acquittal,

the complainant has filed this appeal.

7.

Heard the arguments advanced by the learned

counsel for the appellant/complainant and learned counsel

for respondent/accused. Perused the records.

8.

Learned counsel for the appellant would contend

that the cheque amount is Rs.6,00,000/- which is dated

14.07.2011 and that the cheque belongs to the accused and

the signature of the accused on the cheque are undisputed.

Hence, he would contend that initial presumption under

Section 139 of NI Act in his favour regarding cheque is

being issued for discharge of legally enforceable debt. He

would content that inspite of issuance of legal notice same

was not replied and though the accused has taken a

defence that the cheque was stolen from his vehicle, he has

not lodged any complaint in this regard. Hence, he would

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contend that trial Court has erred in ignoring these legal

aspects and drawing the presumption and has given

unnecessary importance to the financial status of the

compla