These

two

appeals

are

preferred

by

the

complainant in C.C.No.1643/2015 and C.C.No.3522/2015

on the file of the Court of XXVII Additional Chief

Metropolitan Magistrate, Bengaluru, whereby the learned

Magistrate has dismissed the complaints and acquitted

the accused of the offence punishable under Section 138

of the N.I. Act.

C.C. No.1643/2015 is in respect of a cheque

bearing No.072834 dated 04.08.2014 drawn on Punjab

National

Bank,

Peenya

Industrial

Estate

Branch,

Bengaluru issued for a sum of Rs.2,46,00,000/- (Rupees

Two Crore Forty-Six Lakhs only) and C.C. No.3522/2015

3

is in respect of a cheque bearing No.0211934 dated

08.08.2014 drawn on Punjab National Bank, Peenya

Industrial Estate Branch, Bengaluru issued for a sum of

Rs.2,00,00,000/- (Rupees Two Crore only).

It is the case of the complainant that the

above two cheques issued by the accused in discharge of

legally enforceable debt were returned dishonoured for

the reasons 8funds insufficient9 and 8stop payment9

respectively and inspite of issuance of legal notices

calling upon the accused to make the payment, they

have failed to do so, hence, they are liable to be

convicted for an offence punishable under Section 138 of

the N.I. Act.

4.

The primary contention raised by the learned

counsel for appellant is that the learned Magistrate has

lost sight of the fact that, during the pendency of trial an

application was filed under Section 311 of Cr.P.C., for

recalling the complainant-P.W.1 for re-examination, as

there was mistake in mentioning and marking of the

cheques. He submits that while adducing evidence and

4

marking Exs.P1 to P3 the same were interchanged and

the documents pertaining to C.C.No.3522/2015 was

marked in C.C.No.1643/2015 and vice versa. He

submits that vide order dated 28.05.2020, the learned

Magistrate

allowed

the

application

filed

by

the

complainant under Section 311 of Cr.P.C., seeking

permission to lead further chief-examination of P.W.1

and allowed the prayer to return Exs.P1 to P3. It is his

contention that thereafter P.W.1 was recalled for further

chief-examination and the matter was set right by

marking proper documents in the respective cases. He

submits that the learned Magistrate while passing the

impugned order has lost sight of the said fact and

proceeded to acquit the accused holding that the

averments of the complainant is not corroborated with

his evidence, and the complaint averments with regard

to the cheque amount is totally different to the evidence

of P.W.1. He contends that the above finding recorded

by the Court below has led to miscarriage of justice, as

the amount involved is huge and therefore, seeks to set

aside the impugned judgment passed by the trial Court.

5

5.

The

learned

counsel

appearing

for

respondents

have vehemently contended that the

learned Magistrate has considered all the aspects of the

case and after giving cogent and valid reasons dismissed

the complaint and acquitted the accused and the said

order does not suffer from any illegality. It is contended

that all the partners of the firm were not impleaded as

accused and the complainant cannot pick and chose the

accused. It is contended that the learned Magistrate has

taken into consideration that the complainant has not

impleaded all the partners and accused have no any dues

to pay to the complainant and at the time of presentation

of the cheque to the bank, sufficient funds were available

in the account of the accused. Further, it is contended,

the alleged cheques were issued in favour of the

complainant for security purpose as they are running

business with the complainant. It is also contended that

the complainant has intentionally left out other partners

of the accused firm showing accused No.3 as a partner,

though he is a Managing Director and not a partner and

therefore the trial Court has rightly come to the

6

conclusion that the complainant has failed to establish

his case by adducing material evidence. It is contended

that the impugned order does n