M. NAGAPPA Vs. MOHAMAD ASLAM SAVANUR

JUDGEMENT

(1.) This appeal is directed against the judgment and order of acquittal dated 05.07.2011 passed in C.C.No.1575/2009, whereby the respondent-accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, (hereinafter referred to as N.I.Act) and also praying to pass an order to convict the accused for the offence punishable under Section 138 of N.I.Act.

(2.) The brief facts of the case are that the appellantcomplainant and the respondent-accused were known to each other. The appellant-complainant had given a loan of Rs.1,50,000/- to the respondent-accused for his family necessities through a cheque bearing No.146341 for a sum of Rs.1,00,000/- drawn on Canara Bank, P.J.Extension, Davanagere, and also paid a sum of Rs.50,000/- in cash. The respondent-accused, having failed to pay the amount within a reasonable time, had issued three cheques bearing Nos.981735, 981736 and 981737 dated 01.03.2006, 01.04.2006 and 01.05.2006 respectively, for a sum of Rs.50,000/- each, drawn on Laxmi Villas Bank, Davanagere Branch. The said cheques were presented to bank for encashment but they were dishonoured and returned with an endorsement "funds insufficient". The appellant-complainant got issued legal notice dated 22.05.2006, but it was returned with a shara "not claimed". Since the respondent-accused failed to repay the loan amount, the appellant-complainant filed a private compliant under Section 200 Cr.P.C. for the offence punishable under Section 138 N.I.Act. On recording the sworn statement, the case was registered at C.C.No.1575/2009. The charges were read over, but the accused denied the same and claimed to be tried. The complainant got himself examined as P.W.1 and documents were marked as per Exs.P-1 to P-14. The respondent-accused has not led any evidence, but a letter issued by TATA AIG Life Insurance Company Ltd., is got marked as Ex.D-1 during the course of cross-examination, D.W.1.

(3.) The trial Court, on analysis of the evidence adduced by the appellant-complainant, arrived at a factual finding that the respondent-accused had duly issued cheques in question for a sum of Rs.50,000/- each in favour of the appellant-complainant in discharge of a debt or liability. The cheques, were presented to the Bank for payment within the time of validity, but the cheques were returned unpaid for want of funds in the account of the respondentaccused in the bank on which the cheques were drawn. However, the trial Court was of the opinion that appellantcomplainant ought to have issued a notice under Certificate of Posting (COP) in addition to the notice sending through Registered Post with Acknowledgment Due (RPAD). With the said observation, the trial Court has come to the conclusion that the contention of the appellant-complainant that he intimated the respondent-accused regarding dishonour of the cheque leads to suspicion as the P.W.1 has also admitted in the cross-examination to a suggestion made by the respondent-accused that the appellant-complainant has not sent the legal notice to his correct address. Further it is observed that the appellant-complainant has not sent the legal notice to the respondent-accused under certificate of posting, there is no presumption of proper service of notice to the respondent-accused and has further held that the appellant-complainant has failed to prove that he had intimated the respondent-accused regarding dishonour of cheques and nothing on record that respondentaccused has received intimation. With these observations, the complaint came to be dismissed. Being aggrieved by the said order of acquittal, the appellant-complainant is before this Court.