The acquittal under Section 138 of the N.I. Act was upheld due to the complainant's failure to prove the loan and its repayment.

JUDGMENT :

RAJESH RAI K, J.

The appellant has assailed the judgment passed in C.C.No.340/2013, dated 13.01.2017 by the Principal JMFC, Honnavar, [Hereinafter referred to as ‘Trial Court’ for short], whereby the trial Court acquitted the accused/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 , [Hereinafter referred to as ‘N.I. Act’ for short]

2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.

3. The abridged facts of the case are that, the complainant and accused are known to each other. In the year 2013, the accused availed a hand loan of Rs.3,52,000/- from the complainant and for repayment of the same, he issued a cheque bearing No.014520 dated 09.03.2013 drawn on Batkal PLD Bank, Manki Branch for a sum of Rs.3,52,000/-. As per the advice of accused, the complainant presented the cheque through his banker for encashment, however, the same was returned with an endorsement “Funds Insufficient”. Subsequent thereto, the complainant issued a legal notice dated 15.03.2013 to the accused to repay the said cheque amount. The said notice returned with an endorsement “Not Claimed”. Hence, the complainant filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the N.I. Act before the trial Court.

4. To prove the case, the complainant examined himself as PW.1 and one more witness on his behalf as PW.2 and marked 7 documents as Exs.P1 to P7. The accused neither examined any witness on his behalf, nor marked any documents.

5. After assessment of oral and documentary evidence, the trial Court acquitted the accused for the offence punishable under Section 138 of the N.I. Act as stated supra. The said judgment is under challenge in this appeal by the complainant.

6. Heard the learned counsel Sri B.M. Patil for the appellant/complainant, so also learned counsel Smt. Bindu Ganadari, learned counsel for the respondent/accused.

7. The primary contention of the learned counsel for the appellant/complainant is that the trial Court grossly erred while acquitting the accused for the offence punishable under Section 138 of the N.I. Act, despite the complainant placing sufficient evidence on record to prove the case. According to the learned counsel, the mandatory requirements provided under Section 138 of the N.I. Act is complied by the complainant. Further, the accused has not disputed the cheque in question and his signature on it. However, the accused has not rebutted the said presumption by placing cogent evidence. According to the learned counsel, while acquitting the accused, the trial Court significantly opined that the complainant failed to prove the lending capacity of Rs.3,52,000/-. Per contra, the complainant produced Exs.P5 to P7-receipts issued by the Karnataka Bank for pledging gold ornaments of his wife in the month of January and February, 2013 for a sum of Rs.2,78,000/- and the balance amount was paid by him by obtaining a loan in his wife’s name. In such circumstance, the complainant has proved advancing of loan amount. Despite, the trial Court acquitted the accused in the impugned judgment which is liable to set-aside. Accordingly, he prays to allow the appeal and to convict the accused for the charged offence.

8. Per contra, learned counsel for the respondent/accused contended that the trial Court after meticulously examining the entire evidence on record passed a well-reasoned judgment, which does not warrant interference at the hands of this Court. She contended that the complainant failed to state the date and month of advancing the loan amount to the accused. The amount in question is an odd amount and the complainant has not stated for what purpose the accused had obtained the said loan amount. Further, in the complaint, the complainant has stated that the accused has obtained a hand loan of Rs.3,52,000/- in a single payment, however, in the cross-examination he stated that the