The credibility of evidence is crucial; mere allegations are insufficient for conviction under dishonor of cheque cases.

2 10 02 :25 0.0 :07 9.22 +0530 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT DATED 15.02.2017 PASSED IN C.C.NO. 235 OF 2012 BY CIVIL JUDGE AND JMFC COURT AT HALIYAL AND TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

In this appeal, the appellant/complainant has assailed the judgment passed in CC No.235/2012 dated 15.02.2017 by the Civil Judge and JMFC, Haliyal, [Hereinafter referred to as ‘Trial Court’ for short], whereby the trial Court acquitted the accused/respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 , [Hereinafter referred to as ‘NI Act’ for short]

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

3. Briefly stated the facts are that the complainant and the accused are known to each other. In the month of September, 2011, the accused borrowed a hand loan of Rs.1,00,000/- from the complainant for her urgent financial needs by assuring that she would repay the same within 2-3 months. However, she failed to repay the amount and finally, she issued a cheque bearing No.350929 dated 28.11.2011 drawn on Syndicate Bank, Haliyal Branch for Rs.1,00,000/-. The complainant presented the said cheque for encashment through his banker, but the same was returned with an endorsement “Insufficient Funds”. The said aspect was brought to the knowledge of the accused by issuing a legal notice dated 21.12.2012. However, the accused did not repay the said loan amount. As such, the complainant filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of NI Act before the trial Court.

4. To prove the case, the complainant examined himself as PW1 and marked 9 documents as Ex.P1 to P9. The accused examined herself as DW2 and one more witness as DW1 and marked 2 documents as Ex.D1 & D2.

5. On assessment of oral and documentary evidence, the trial Court acquitted the accused for the offence punishable under Section 138 of NI Act. The said judgment is under challenge in this appeal by the complainant.

6. Heard the learned counsel Sri.Vijay M Malali for the appellant/complainant, so also the learned counsel Sri. N.M.Patil for Sri. J.S. Shetty, the 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 NI Act, despite the complainant placing sufficient evidence and documents on record. He contended that the accused has taken improbable defence that she lost the cheque in question and the same was misused by the complainant for unlawful gain. However, she failed to lodge any complaint to that effect. Though the accused disputed her signature on Ex.P1-cheque in question by producing Exs.D1 and D2 i.e., application for opening of savings account and Form No.60, however, on perusal of her signature on Ex.P1-cheque and the affidavit, the same tallies each other. As such, it is clear that she only issued the cheque Ex.P1. Moreover, she failed to examine any handwriting expert to prove that signature on Ex.P1 not belongs to her. These aspects of the matter are not properly appreciated by the trial Court, which resulted in acquittal of the accused. Thus, he prays to allow the appeal by setting aside the impugned judgment of acquittal and t