G. PREMDAS Vs. SRI. VENKATARAMAN

JUDGEMENT

(1.) THIS appeal filed by the complainant challenging the order of acquittal dated 20.12.1997 passed by the XI Additional Chief Metropolitan Magistrate, Bangalore, in C.C. No. 24324 of 1994 acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act (hereinafter called the Act).

(2.) THE brief facts as per the complainant's case are as follows: On 18.2.1993 the accused/Respondent herein approached the complainant/Appellant herein for a hand loan of Rs. 60,000/ - to meet his financial commitments with a promise that he will return the same with interest at 18% per annum. As such, the Appellant withdrew a sum of Rs. 60,000/ - from his bank account and handed over the same to the Respondent on the very same day and further the Respondent issued on the very same day a post -dated cheque dated 18.8.1993 drawn on the Corporation Bank, M.G. Road, Bangalore, for Rs. 65,400/ -. It is alleged that the said cheque was presented to the Bank on 18.8.1993. The said cheque was returned by the Bank with an endorsement "insufficient fund". Thereafter, the Appellant issued a legal notice dated 25.9.1993 to which the Respondent gave an untenable reply. As such, after making several requests and demands, as the Respondent failed to make the payment, the Appellant filed complaint under Section 138 of the Act. Process was issued to the Respondent by the learned Magistrate after satisfying himself as to the existence of a prima facie case. During the trial, the Appellant got himself examined as PW -1 and got marked Exhibits P -1 to P -6. The Respondent denied the entire case in his statement under Section 313 Code of Criminal Procedure and also filed his written statement explaining the circumstances under which the cheque came to be issued. The trial Court appreciating the evidence held that the Appellant has failed to prove the very transaction dated 18.2.1993 alleged by him; that there was doubt as to whether the actual amount was paid or not; that as it is the very case and the evidence of the Appellant that the cash was paid by the son, it was for the son to file the complaint and as such the present complainant has no locus standi. It was also observed by the trial Court as it was admitted by the complainant himself that the accused was not present in Bangalore on the day when the alleged transaction including the request for money, the withdrawal of the amount and payment of the same so also the issuance of the alleged post -dated cheque, Exhibit P.1, took place and that there is reasonable doubt as to the correctness of the complainant's case. As such, the trial Court giving the benefit of doubt acquitted the accused. Hence, the present appeal.

(3.) ON the other hand, the learned Counsel for the Respondent contended that as these are criminal proceedings it is for the complainant to prove the basic requirements to show that the transaction did take place on the day alleged and the money changed hands from the Appellant to the Respondent and in pursuance of such transaction the Respondent gave the post -dated cheque. Learned Counsel relying upon the very evidence of the Appellant himself contended that there is total variation from point to point regarding the entire transaction and as such the trial Court was justified in disbelieving the evidence of the Appellant and in acquitting the Respondent.