Burden of proof lies on the complainant to establish the existence of a legally enforceable debt under Section 138 of the N.I. Act.

CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE M G UMA)

The appellant being the complainant in C.C.No.3570/2018 on the file of the learned Principal Civil Judge & JMFC, Kalaburagi (hereinafter referred to as ‘Trial Court’), is impugning the judgment dated 29.01.2020 acquitting the respondent-accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 [for short, ‘the N.I.Act’].

2. Facts of the case in brief are that, the appellant -complainant has filed the private complaint in P.C.No.523/2018 before the Trial Court against the respondent-accused alleging commission of offence punishable under Section 138 of N.I. Act. It is the contention of the complainant in the complaint that, the accused was his friend who had approached him for financial help. Accordingly, he has given Rs.5,00,000/- to the accused during first week of March, 2015, another Rs.5,00,000/- during first week of April, 2015 and again Rs.5,00,000/- during last week of June, 2015. Thus, the accused had taken in all Rs.15,00,000/-, agreeing to repay the same within two years. When the complainant requested the accused to repay the loan amount, he had issued the cheque as per Ex.P1. When the cheque was presented for encashment, the same was dishonored as there was insufficient fund in the account of the accused. The complainant issued a legal notice informing the accused regarding the dishonor the cheque and calling upon him to repay the cheuqe amount. However, the notice was returned un-served as ‘door locked’. Since accused has not paid the cheque amount, he has thereby committed the offence punishable under Section 138 of N.I. Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action.

3. Learned Magistrate took cognizance of the offence and registered the case in C.C.No.3570/2018 and issued summons to the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW.1 and got marked Exs.P-1 to P-28 in support of his contention. The accused denied all the incriminating materials available on record in his statement under Section 313 Cr.P.C., examined himself as DW-1 and got marked Exs.D1 to D4 in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt and accordingly the impugned judgment of acquittal came to be passed. Being aggrieved by the same, the complainant is before this Court.

4. Heard Sri B.Bhimashankar, learned counsel for appellant and Sri Ravi Bheemsingh Chawan, learned counsel for respondent. Perused the materials on record.

5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

"Whether the judgment passed by the Trial Court acquitting the accused suffers from infirmities and calls for interference by this Court?"

6. My answer to the above point is in the ‘Negative’ for the following:

REASONS

7. It is the contention of the complainant that he had lent in all Rs.15,00,000/- to the accused who was his friend. Towards repayment of the same, the accused had issued cheque as per Ex.P1, which came to be dishonored as there was insufficient fund in the account of the accused as per Exs.P2 and P3. The legal notice as per Ex.P4 was issued and the legal notice was returned un- served as ‘door locked’ as per Ex.P6. The accused has not repaid the cheque amount and thereby he has committed the offence under Section 138 of N.I. Act.

8. To prove his contention, the complainant examined himself as PW.1