DATED

11-11-2015

PASSED

BY

LXVII

ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY

IN CRL.A.362/2015 AND ETC.,

THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH

PHYSICAL HEARING / VIDEO CONFERENCING HEARING AND

RESERVED ON 18.08.2023 BEFORE THE PRINCIPAL BENCH AT

BENGALURU BENCH, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT,

DHARWAD,

THROUGH

VIDEO

CONFERENCING,

THIS

DAY,

COURT

DELIVERED

FOLLOWING:

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JUDGMENT

1.

This appeal is filed by the complainant being

aggrieved by the judgment and order of acquittal dated

11.11.2015 in Criminal Appeal No.362/2015 on the file of LXVII

Additional City Civil and Sessions Judge, Bengaluru.

2.

The rank of the parties in the Trial Court henceforth

will be considered accordingly for convenience.

Brief facts of the case:

3.

The complainant was working as civil contractor and

he says that he knows the accused since four to five years.

According to the complainant, the accused in the month of

April, 2011 requested the complainant to lend a sum of

Rs.10.00

lakhs.

However,

the

complainant

had

lent

Rs.7,15,000/- in three stages. The accused in repayment of

the said loan issued a cheque dated 06.04.2011. When it was

presented it for encashment, the said cheque dishonoured with

a shara as ‘insufficient funds’. A notice was issued and brought

to the knowledge of the accused regarding dishonor of the

cheque. In spite of notice having been served, the accused has

neither replied the said notice nor repaid the amount as

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mentioned in the cheque. Therefore, a complaint came to be

lodged by the complainant before the jurisdictional Magistrate.

4.

In order to prove his case, the complainant

examined himself as PW.1 and got marked six documents as

Exs.P1 to P6. The accused has not chosen to lead any evidence

nor produced any document except conducting the cross-

examination. The Trial Court after recording the oral and

documentary evidence on record, opined that the accused

found guilty for the offence under Section 138 of the N.I. Act

and sentenced him to pay fine of Rs.7,70,000/-. On appeal

being filed, the Appellate Court allowed the appeal and set

aside the judgment of conviction passed by the Trial Court.

5.

The finding of the Appellate Court in recording the

acquittal is that the complainant must have proved his case by

producing books of account or any other proof to show that the

complainant got so much money with him and it also opined

that the complainant has not produced the income tax returns

to show that the said loan was advanced. In other words, the

complainant has not proved the legally enforceable debt or

liability.

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6.

Heard

Sri.Sathyanarayana.S.Chalke,

learned

counsel for the appellant and Sri.Prasanna V.R, learned counsel

for the respondent.

7.

It is the contention of the learned counsel for the

appellant that the Appellate Court misread that the complainant

must prove the case beyond all reasonable doubt even though

the presumption has not been rebutted which is contrary to the

settled principle of law. Hence, the same is liable to be set

aside.

8.

It is further contended that once the cheque and

signature are admitted, the presumption has to be raised in

favour of the complainant. Had the presumption has been

raised, the impugned judgment would not have been passed by

the Appellate Court. Having failed to take note of the

presumption properly, resulted in passing the impugned

judgment. Therefore the same is liable to be set aside.

9.

Per contra, the learned counsel for the respondent

vehemently justified the findings of the Appellate Court in

recording the acquittal by setting aside the judgment of

conviction passed by the Trial Court and submits that the

accused has rebutted the presumption by conducting the cross-

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examination. In the cross-examination, there are some

inconsistencies and discrepancies which goes to the root of the

case, as a result of which the acquittal is recorded.

10. It is further submitted that the complai