The appellant/complainant has preferred this appeal

against the judgment of acquittal dated 04.09.2013 in

C.C.No.424/2010 by the Court of Civil Judge and JMFC,

Ponnampet.

For the sake of convenience, the parties in this

appeal are referred to as per their status and rank before

the Trial Court.

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The case of the complainant as per complaint

averments in nutshell is that the accused being the family

friend

of

the

complainant

availed

hand

loan

of

Rs.1,15,000/- from the complainant for construction of

house on 10.07.2001. In discharge of the said liability, the

accused has issued cheque dated 23.11.2002 drawn on

Karnataka Bank Limited, Cheyyandane Branch in favour of

the complainant. The said cheque when presented for

encashment

was

dishonoured

with

an

endorsement

'payment stopped by drawer'. After the said dishonour,

complainant caused legal notice to the accused on

11.12.2002 calling upon him to make payment covered

under the cheque. The accused replied to the legal notice

with all sorts of false allegation but failed to make payment.

Hence, the complainant has filed this complaint.

After recording the sworn statement of the

complainant, the Trial Court has registered the case against

the accused for the commission of offence punishable under

Section

138

of

Negotiable

Instruments

Act,

1881

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(hereinafter referred to as 'N.I. Act' for short) in

C.C.No.424/2010. On issuance of summons, the Trial

Court has recorded plea and the accused has not pleaded

guilty.

To prove the case of the complainant, two

witnesses are examined as PW.1 and PW.2 and in all 11

documents are got marked as Ex.P1 to Ex.P11. On closure

of complainant's evidence, accused was examined under

Section

313

of

Cr.P.C.

Accused

has

denied

the

incriminating circumstances appeared against him in the

evidence and also adduced defence evidence. On behalf of

accused, one Chittiappa was examined as DW.1, accused

himself was examined as DW.2 and manager of the Bank

was examined as DW.3. 12 documents were got marked as

Ex.P1 to Ex.P12. On hearing the arguments on both sides,

the Trial Court has acquitted the accused for the

commission of offence punishable under Section 138 of

N.I.Act. Being aggrieved by this impugned judgment of

acquittal, complainant has preferred this appeal.

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6.

Learned counsel for the appellant has submitted

his arguments that the Trial Court has acquitted the

accused holding that the accused has successfully rebutted

the presumptions under Sec 118 and 139 of N.I.Act. The

observation made by the Trial Court is not in accordance

with law and facts. The accused has admitted the issuance

of cheque and also signature found on the cheque. When

this is the case of complainant, the Trial Court ought to

have believed the story of the complainant and should not

have gone in search of the legal infirmities such as date of

issue of cheque and the date of service of the notice. The

Trial Court failed to appreciate the agreement executed

between the parties. In the agreement, it was clearly

mentioned that the complainant had financed a sum of

Rs.1,15,000/- for the construction of the house of the

accused on or about July 10^th of 2001 and the accused has

agreed to return the same on or before 23.11.2002. The

Trial Court has not appreciated the evidence led by the

prosecution witnesses in the judgment and has carried

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away by the reply notice and the police complaint lodged by

the accused against the complainant.

7.

Further, Appellant's Counsel submits that if

really the complainant has taken the cheque forcibly from

the accused on 24.09.2002, the accused would have filed

the complaint at the earliest point of time. But the accused

has filed the complaint on 11.10.2002 and the intimation to

the Bank Manager to stop payment was also made on

11.10.2002. The complainant and the accused has entered

into agreement at Ex.P11. Accordingly, the complainant

has presented the cheque only on 23.11.2002. If really the

accu