At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE A.S. PACHHAPURE
For the Appellant: M.N. Madhusudhan, Advocate. For the Respondent: T.H. Narayana, Advocate.
(Prayer: This Crl.A. is filed u/Section 378(4) Cr.P.C. praying to set aside the Order of acquittal dated 29.04.2009 passed by the Prl. Civil Judge (Jr.Dn.) and JMFC, Tumkur in C.C. No.1070/2006 acquitting the respondent for the offence punishable under Section 138 of N.I. Act.)
1. The appellant has challenged the Judgment and Order, acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the N.I. Act" for short] on a trial held by the JMFC., Tumkur.
2. The facts reveal that the appellant, who is the complainant before the trial Court said to have advanced a sum of Rs.2,10,000-00 to the respondent/accused and towards repayment of the said amount, a cheque bearing No.2159866 dated 06.08.2004 was given. The said cheque was presented for encashment. It returned with endorsement "insufficient funds". The appellant issued a notice to the respondent. The same was replied, but the demand made was not met with. Hence the appellant approached the trial Court with a complaint under Section 200 Cr.P.C. praying to initiate action against the respondent for the offence punishable under Section 138 of the N.I. Act.
Before the trial Court, the appellant was examined as P.W.1 and in his evidence documents Exs.P1 to 6 were marked. The statement of the respondent was recorded under Section 313 Cr.P.C. The respondent was examined as D.W.1 and in his evidence Exs.D1 to 7 were marked. The trial Court after hearing both the parties and on appreciation of the material on record, acquitted the respondent for the said charge. Aggrieved by the acquittal, the present appeal has been filed.
3. I have heard learned counsel for both the parties.
4. It is the submission of learned counsel for the appellant that the signature on the cheque has been admitted by the respondent and therefore, he contends that presumption arises under Section 139 of the N.I. Act and as the said presumption is not rebutted, he submits that the trial Court ought to have convicted the respondent for the said charge.
On the other hand, it is the submission of learned counsel for the respondent that sufficient material has been placed on record to rebut the presumption and the trial Court has rightly acquitted the respondent for the said charge.
5. The perusal of the evidence of P.W.1 and the allegations made in the complaint reveals that the appellant had advanced a sum of Rs.2,10,000-00 to the respondent in the 1st week of March 2004. On that day, except the presence of the appellant and the respondent, no one were present. The payment is said to have made by cash. The appellant has not produced any material on record to show his financial capacity.
6. The cheque-Ex.P1 is said to be issued by the respondent on 06.08.2004. It is the defence of the respondent that he had taken a loan from one Thimmaraju and the said loan was paid on instalment. To prove the same, he has produced Ex.D1-Entries made in the pocket calendar. He submits that as a security, he has issued a cheque to Thimmaraju towards payment of the loan amount and the said Thimmaraju has not returned the cheque to him though the payment was made. It is also his contention that Thimmaraju is a close relative of P.W.1-Complainant and the complainant having taken the cheque has misused the same by filing the complaint. The cross-examination of P.W.1 reveals that the said Thimmaraju is brother's son of the complainant and there is a close relationship between the complainant and Thimmaraju. Ex.D1 amply proves that there was a loan transaction between the accused and Thimmaraju. Even after receipt of the notice from the complainant, the accused has taken a such defence in the reply notice-Ex.P5. So, it is under these circumstances that the trial Court was of the opinion that the accused has made out a probable defence and from the material placed on record has rebutted the presumption.
7. This is an appeal against acquittal and it is well-established principle of law that in such appeals, the appellate Court would be slow in interfering with such order. Even if a second view is possible, the one accepted b
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y the trial Court should not be disturbed. Considering this aspect in the context of the material placed on record, the respondent has made out a probable defence so as to raise the issue with regard to the genuineness of the transaction between himself and the respondent. In the circumstances, I am of the opinion that there are no grounds to interfere in the Judgment and Order of acquittal. In the result, the appeal fails and is accordingly dismissed.