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 Principal Civil Judge and JMFC at Hassan in CC

No.1545/2006 dated 05.12.2011, whereby the learned Judge 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-versed with each other, as

they are friends; that the accused has availed hand-loan of

Rs.8.00 Lakhs from the complainant and towards discharge of

the said debt, he has issued a cheque dated 27.03.2006 in

favour of the complainant. It is the further case of complainant

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that, when the complainant has presented the said cheque for

encashment,

it

was

bounced

for

insufficient

funds

and

immediately the complainant has got issued a legal notice on

07.04.2006, which was served on the accused, but he did not

respond. Hence, the complainant claims that the accused has

issued a cheque towards legally enforceable debt, having

knowledge that he had no sufficient amount in his account and

thereby he lodged a private complaint.

4.

After recording the sworn statement, the learned

Magistrate has taken cognizance and issued summons to the

accused. The accused appeared through his counsel and was

enlarged on bail. The plea under Section 138 of the N.I. Act was

recorded and read-over to the accused and he pleaded not

guilty.

5.

The complainant got examined himself as PW.1 and

he has placed reliance on Eight documents marked at Exs. P1 to

P8. Thereafter, the statement of accused under Section 313 of

Cr.P.C. was recorded to enable him to explain the incriminating

evidence led against him.

4

6.

It was the contention of the accused that he has

issued 3 to 4 cheques in favour of the complainant in respect of

a site purchase transaction and the same have been misused.

However, the accused has not led any evidence.

7.

After hearing the arguments and after appreciating

the oral as well as documentary evidence, the learned Magistrate

observed that the complainant has failed to prove that the

cheuqe was issued towards the legally dischargeable debt and

thereby acquitted the accused for the offence under Section 138

of the N.I. Act vide judgment dated 05.12.2011.

8.

Being

aggrieved

by

the

said

judgment,

the

complainant has filed this appeal.

9.

Heard the arguments advanced by the learned

counsel for the appellant/complainant and perused the records.

10.

Learned counsel for the complainant would contend

that the signature on the cheque is admitted by the accused and

admittedly the cheque belongs to the accused and as such, there

is a presumption in favour of the complainant under Section 139

of the N.I. Act. Hence, he would contend that the accused has

5

failed to rebut the presumption, as he has not led any evidence

and the trial Court has erred in considering the financial status of

the complainant erroneously and acquitting him. Hence, he

would seek for allowing the appeal by setting aside the impugned

judgment of acquittal and sought for convicting the accused/

respondent herein.

11.

Though the respondent is represented by his counsel,

the learned counsel for respondent did not appear before the

Court to advance arguments.

12.

Having heard the arguments and perusing the

records,

now

the

following

point

would

arise

for

my

consideration:-

<Whether

the

trial

Court

is

justified

in

acquitting the accused/respondent herein for the

offence under Section 138 of the N.I. Act?=

13.

It is an undisputed fact that the cheque belongs to

the accused and it bears his signature. Hence, prima facie, the

presumption under Section 139 of the N.I. Act is in favour of the

complainant. However,