THE

DHARWAD,

THROUGH

VIDEO

CONFERENCING, THIS DAY, THE COURT DELIVERED THE

FOLLOWING:

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JUDGMENT

1. Even though the matter is listed for admission with

the consent of learned counsel for the parties, it is taken up for

final disposal.

2.

This appeal is filed by the appellant being aggrieved

by the judgment and order of acquittal dated 19.06.2018

passed in C.C.No.245/2016 on the file of the Senior Civil Judge

and Judicial Magistrate First Class, Thirthahalli, wherein, the

Trial Court acquitted the accused/respondent for the offence

punishable under Section 138 of the Negotiable Instruments

Act (for short ‘N.I. Act’).

3.

The rank of the parties in the Trial Court henceforth

will be considered accordingly for convenience.

Brief facts of the case:

4.

It is the case of the complainant that he was the

owner of HO Loader TATA Telecon-315E JCB bearing No.KA.-

18/N-9560. There was an agreement between the complainant

and the accused in respect of sale transaction of the said JCB.

As per the agreement, the total sale consideration of Rs.13.00

lakhs was fixed. The accused has agreed to pay Rs.9,40,000/-

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on 20.05.2013 through Siri Souharda Bank, Siddappa Branch

through Demand Draft and the balance of Rs.1,26,000/- has

paid in cash on the same day. Further, the accused assured

that the balance amount of Rs.2.00 lakhs would be repaid

within six months under two instalments. As a security, two

cheques were issued and took possession of the JCB vehicle. It

is further stated that the accused intended to apply for the loan

to hand over the amount of Rs.9,74,000/- to the complainant

as sale consideration. However, due to non co-operation of the

complainant, he could not apply for the loan. In the meantime,

it is stated that the complainant without the knowledge of the

accused took possession of the JCB and kept in his house. A

panchayath was held to return the JCB to the accused,

however, the complainant was reluctant to hand over the

possession of the said JCB to the accused. When the advance

amount was asked to return, the complainant explained the

method in which the said advance amount has been adjusted

and also did not return the cheques which were taken as

security. However, it is stated that the cheque of Rs.2.00 lakhs

was presented for encashment and it got dishonoured. Hence,

the complaint.

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5.

To prove the case of the complainant, the

complainant examined himself as PW.1 and got marked seven

documents as Ex.P1 to Ex.P7. The Trial Court after

appreciating the oral and documentary evidence on record,

recorded the acquittal

6.

Heard Sri.Girish Kodgi, learned counsel for the

appellant and Sri.Javeed.S, learned Amicus Curiae for the

respondent.

7.

It is the submission of learned counsel for the

appellant that the findings recorded by the Trial Court in

acquitting the accused is erroneous, perverse and illegal and

the same requires to be set-aside.

8.

It is further submitted that the accused had issued

a cheque towards part payment of sale transaction in respect of

JCB. The complainant being the owner of the said JCB

instructed the accused many times to pay the amount.

However, the accused did not heed his words, hence, presented

the cheque for encashment.

9.

It is further submitted that the accused even after

receipt of the legal notice, did not repay the amount, however,

sent untenable reply to the notice. The Trial Court failed to

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raise the presumption and recorded the acquittal which is

perverse, illegal and the same is liable to be set aside. Making

such submission, the learned counsel for the appellant prays to

allow the appeal.

10. Per contra, the learned Amicus Curiae for the

respondent vehemently justified the judgment and order of

acquittal passed by the Trial Court and submitted that the

liability in respect of the present cheque would not arise for the

reason that the cheque which was issued for part payment in

respect of sale transaction of the JCB was not