B GIRISH Vs. S RAMAIAH

JUDGEMENT

(1.) This appeal filed under Section 378(4) of the Criminal Procedure Code, 1973 are directed against the judgment and order dated 18.6.2007 passed by the XXI Additional CMM, Bangalore, in CC No. 17092 of 2004 acquitting the respondent/ accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the *N.I. Act').

(2.) The appellant-complainant filed a private complaint under Section 200 of the Cri. PC. against the respondent alleging offence punishable under Section 138 of the N.I. Act inter alia contending that during the month of January 2004, the accused along with one Mr. N. Satish approached him for a hand loan of Rs.50,000 to meet his urgent need of money for the construction of his house. Accordingly the complainant gave hand loan of Rs.50,000 to the accused in the presence of the said N. Satish and the accused promised to repay the said hand loan during the month of January 2004. When the complainant approached the accused during the month of June 2004 requesting him to repay the hand loan, the accused issued a cheque dated 14.6.2004 drawn on State Bank of India, Basaveshwaranagar Branch, Bangalore towards repayment of the hand loan. However when the said cheque was presented for encashment, the same was returned unpaid with banker's endorsement dated 18.6.2004 "Funds Insufficient" and inspite of service of notice, the accused has failed to pay the amount covered under the cheque, as such, he has committed the offence punishable under Section 138 of the N.I. Act.

(3.) Upon service of summons issued by the learned Magistrate the respondent/accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him and claimed to be tried. During the trial, the complainant examined himself as PW1 and got marked Exs.Pl to P7. During his examination under Section 313 of the Cr.P.C. the accused denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence, the respondent-accused examined himself as DW1. It was the specific defence of the accused that there was no monetary transaction between him and the complainant and that at no point of time he has borrowed a sum of Rs. 50,000 from the complainant nor he had issued the cheque in question to the complainant for discharge of the said loan amount. It was also his defence that the complainant had no financial capacity to lend loan of Rs. 50,000 and that he (accused) is a Government Servant having sufficient income and that his son as well as daughter are also employed, as such, there was no necessity for him to take any loan from the complainant, and that, he has never seep the complainant.