D B SIDDALINGAIAH Vs. SHAKUNTALA DEVAPPA

JUDGEMENT

(1.) The complainant is before this Court in appeal aggrieved by the order of acquittal passed by the XVI Additional CMM, Bangalore in CC No. 35096 of 2001 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

(2.) The appellant/complainant filed a complaint against the respondent/accused alleging the during the second week of January 2001, the accused had borrowed a loan of Rs. 6 lacs from him and towards discharge of the same, had issued a cheque dated 1-6-2001 drawn on Central Bank of India, Bangalore. On presentation of the same through his banker, the cheque was returned back with an endorsement 'insufficient funds'. Thereafter, complainant got issued a legal notice to the accused demanding the amount. The notice was received by the accused and she also replied to the said notice on 27-6-2001 through her Advocate denying any such debt. However, since the accused did not pay back the amount, private complaint came to be filed for the offence punishable under Section 138 of the Negotiable Instruments Act before the XVI Additional CMM, Bangalore. Learned Magistrate, took cognizance of the complaint, recorded the sworn statement and ordered issuance of summons.

(3.) During inquiry, the stand of the complainant is, amount was given in connection with business transaction and that there is an enforceable liability. However, the specific stand of the accused, even in the reply given to the legal notice, is there is no such transaction between the complainant and the accused. In respect of a chit being run by the wife of the complainant, cheques were given as security towards payment of the balance of the chit amount and the cheques were misused due to the difference between the wife of the complainant and the respondent who were colleagues working in the same institution. It is her stand that unless and until it is demonstrated that there is a legally enforceable debt, mere presumption that the cheque has been issued does not carry any presumptive value regarding enforceable debt and no evidence has been let in this regard nor an iota of evidence is produced. As such, the Trial Court has rightly acquitted the respondent accused and the impugned order does not suffer from any illegality or error.