This appeal is filed by the complainant/appellant under

Section 378(4) of Cr.P.C. against the judgment and order of

acquittal passed by the XXII ACMM, Bengaluru (‘trial Court’

for short) in C.C.No.9997/2017 dated 30.04.2018, whereby

the sessions judge has acquitted the accused/respondent

for the offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (‘NI Act’ for short).

2.

For the sake of convenience parties herein are

referred to their original ranks occupied by them before the

trial Court.

3.

The brief factual matrix leading to the case are

as under:

3

That the complainant is running his own bakery in the

name and style of Prakash Tea House(Bakery) and accused

is doing real estate business. That in the first week of

October 2015, the complainant has approached the accused

with an intention to purchase the site and accused has

agreed for the same. That in the second week of October,

2015, the accused has shown the complainant the sites

bearing

Nos.36,

37

and

38

in

Dwarakanagar,

Chikkabanavar, Bengaluru City and then the complainant

had paid a sum of Rs.12,50,000/- as an earnest amount.

That the accused has failed to get register the sites in

favour of the complainant inspite of persistent demands

made by the complainant and on 05.12.2015 there was an

agreement entered between the parties. Then accused has

issued

a

cheque

dated

05.12.2015

for

a

sum

of

Rs.12,50,000/- after execution of the agreement and asked

the complainant for presenting the cheque for encashment

on 21.02.2017. The complainant has presented the said

cheque on 21.02.2017 and same was returned with a shara

as ‘insufficient funds’. Then on 01.03.2017 the complainant

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had issued a legal notice to the accused. The accused did

not repay the said amount nor replied to the notice and

hence, the complainant 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.

After submission of the complaint, the learned

magistrate has recorded the sworn statement and after

appreciating the material records he has taken cognizance

and issued process against the accused. The accused has

appeared through his counsel and was enlarged on bail. The

plea was recorded and accused pleaded not guilty. Then the

complainant got examined himself as PW.1 and also got

examined one witness on his behalf as Pw.2. Further he

placed reliance on 16 documents marked as Ex.P1 to

Ex.P16.

5.

After completion of evidence of complainant, the

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

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the

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prosecution. The case of the accused is of total denial.

However, he did not lead any defence evidence.

6.

Having

heard

the

arguments

and

after

appreciating the evidence on record, learned magistrate

came to a conclusion that complainant has failed to prove

that the accused has availed hand loan of Rs.12,50,000/-

from the complainant and in discharge of the same he has

issued a cheque as per Ex.P1. Hence, he has acquitted the

accused of the charge under Section 138 of NI Act.

7.

Being aggrieved by this judgment of acquittal the

complainant has filed this appeal.

8.

Heard the arguments advanced by both the

counsels and perused the records of the trial Court.

9.

Learned counsel for the appellant would contend

that the trial Court has committed an error in acquitting the

accused. He would further contend that there is no

challenge to the signature on the cheque and admittedly

cheque belongs to the accused and the trial Court has

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committed an error in not drawing presumption in favour of

the complainant under Section 139 of NI Act. He would

further contend that the trial Court on presumptions and

assumptions has misconceived the evidence and acquitted

the accused which has resulted in miscarriage of justice.

Hence, he would seek for setting aside the impugned

judgment of acquittal by allowing the appeal and convict