Appellant/complainant

feeling

aggrieved

by

judgment of acquittal passed by the Prl. Civil Judge and

JMFC, Jamkhandi, in C.C.No.435/2009, dated 07.11.2012

preferred this appeal.

2.

Parties to the appeal are referred with their

ranks as assigned in the trial Court for the sake of

convenience.

3.

The factual matrix leading to the case of

complainant can be stated in nutshell to the effect that

complainant and accused are residents of Hirepadasalagi

village and they know each other very well. The accused

was in need of money of Rs.2,00,000/- for his family,

business and domestic necessities. Complainant in the

month of April-2008 advanced loan of Rs.2,00,000/- and

accused assured to repay the same as and when

demanded by the complainant. Accused in discharge of

debt

has

issued

cheque

bearing

No.637201

dated

17.09.2008 for Rs.2,00,000/- drawn on Karnataka Vikas

Grameena Bank branch at Hirepadasalagi. Complainant

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presented the said cheque for encashment on 23.10.2008

which came to be dishonored for want of sufficient funds in

the account of accused vide memo dated 23.10.2008. The

complainant has issued demand notice dated 03.11.2008.

The same is duly served to the accused on 04.11.2008.

Accused has neither paid the amount covered under the

cheque nor replied to the notice. Therefore, complaint

came to be filed on 03.12.2008 for taking appropriate

legal action against accused.

4.

In response to the summons, accused appeared

before trial Court and contested the matter. Complainant

in order to prove his case, relied on the evidence of PW-1

and documents-Ex.P.1 to Ex.P.15. Accused has denied all

the incriminating material evidence appearing against him

during the course of his 313 Cr.P.C statement. Accused

has not led any defence evidence. The trial Court after

appreciating the evidence on record by judgment dated

07.11.2012 acquitted accused for the offence punishable

under Section 138 of the Negotiable Instruments Act (for

short ‘the N.I.Act’).

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5.

The appellant/accused feeling aggrieved by the

judgment of acquittal passed by the trial Court has

preferred this appeal contending that issuance of cheque

with signature of accused on the account maintained by

him is not disputed. Therefore, in the absence of any

rebuttal

evidence,

trial

Court

should

have

drawn

presumption in terms of Section 118 and 139 of N.I.Act.

The trial Court has committed serious error in holding that

there is no legally enforceable debt, as against statutory

presumption available in favour of complainant in terms of

Section 118 and 139 of N.I.Act. Therefore, prayed for

allowing the appeal and to convict accused for offence

punishable under Section 138 of N. I. Act by setting aside

the judgment of trial Court.

6.

In

response

to

notice

of

appeal,

respondent/accused appeared through learned counsel.

7.

Heard the arguments of both sides.

8.

On careful perusal of oral evidence of PW-1 and

the documents relied by complainant, it would go to show

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that accused for lawful discharge of debt has issued

cheque bearing No.637201-Ex.P.1, dated: 17.09.2008 for

Rs.2,00,000/- drawn on Karnataka Vikas Grameena Bank,

branch at Hirepadasalagi. The complainant presented the

said cheque-Ex.P.1 for encashment on 23.10.2008 and the

same was dishonored for want of sufficient funds in the

account of accused vide bank endorsement-Ex.P.2. The

complainant issued demand notice-Ex.P.3 on 03.11.2018,

postal receipt is produced as per Ex.P.4. The demand

notice is duly served to the accused on 04.11.2008 vide

acknowledgment card-Ex.P.5. If these documents are

perused and appreciated with the oral evidence of

complainant-PW.1, then it would go to show that

complainant has discharged initial burden of proving

issuance of cheque-Ex.P.1 for lawful discharge of debt.

The said cheque on its presentation was dishonored for

want of sufficient funds in the account of accused.

Therefore, statutory presumption in terms of Section 118

and 139 of N.I.Act will have to be drawn in