THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER CRIMINAL APPEAL No.626 OF 2007

JUDGMENT

This Criminal Appeal, under Section 378(4) of Cr.P.C., is filed by the complainant in C.C. No.209 of 2002 on the file of the Judicial Magistrate of First Class, Tuni (for short, ‘the trial Court’), questioning the judgment dated 06.03.2007 whereby the trial Court found respondent No.1/accused not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act, 1881) and accordingly acquitted him in terms of Section 255 (1)

Cr.P.C.

2. Case of the complainant is as follows:

The respondent-accused borrowed an amount of Rs.1,50,000/- from the appellant-complainant on 07.02.2001 and executed a promissory note in his favour agreeing to repay the same with interest @ 24% per annum either to him or to his order, on demand. After repeated demands, the respondent-accused issued a cheque bearing No.829471, dated 13.8.2002 drawn on State Bank of Mysore, Kakinada branch for Rs.1,50,000/- in favour of the appellant- complainant towards part payment of the amount due under the aforesaid promissory note. When the said cheque was presented by the appellant-complainant through his account in Canara Bank, Yarra Koneru, it was returned with endorsement ‘insufficient funds’. Thereafter, the appellant- complainant got issued statutory notice dated 26.08.2002 to respondent-accused. Though the respondent-accused received the said notice, he did not pay the amount covered under the dishonoured cheque to the appellant-complainant within the period stipulated under Section 138 of the Act, 1881. Hence, the appellant-complainant filed a complaint for the offence punishable under Section 138 of the Act, 1881, which was taken cognizance by the learned Magistrate for the offence punishable under Section 138 of the Act, 1881.

3. On appearance of the respondent-accused, the learned Magistrate complied with the provisions of Section 207 Cr.P.C. When the respondent-accused was examined under Section 251 Cr.P.C., he denied the accusation levelled against him, pleaded not guilty and claimed to be tried.

4. In order to prove the guilt of the respondent-accused, the appellant-complainant got himself examined as P.W.1 and marked Exs.P1 to P6 on his behalf.

5. After closure of prosecution side evidence, the respondent-accused was examined under Section 313 Cr.P.C. He denied the incriminating circumstances appearing against him in the evidence of prosecution witnesses. On behalf of the defence, D.Ws.1 and 2 were examined but no documents were marked.

6. The trial Court, after considering the entire evidence on record, vide the impugned judgment dated 06.03.2007, found the respondent-accused not guilty of the offence punishable under Section 138 of the Act, 1881 and accordingly acquitted him of the said offence. Challenging the said judgment, the complainant preferred the present appeal.

7. Heard the learned counsel for the appellant- complainant and the learned Assistant Public Prosecutor appearing for the respondent No.2-State. Though notice is served on respondent No.1-accused, none appears for him.

Perused the material available on record.

8. Learned counsel for the appellant-complainant would submit that the findings of the trial Court are contrary to law and evidence; that the learned Magistrate erred in acquitting the respondent-accused; that the evidence on record would constitute the offence punishable under Section 138 of the Act, 1881; that the learned Magistrate ought to have seen that the signature on the cheque in question is that of the respondent-accused and therefore ought to have presumed that the cheque was issued for discharge of a debt; that no reply was given by the respondent-accused to the statutory notice got issued by the appellant-complainant; that the contention put forward by respondent-accused that he did not sign the cheque and he does not know the appellant- complainant, is untenable; that besides the cheque in question, t