M. GOPALAPPA Vs. M.D. BASAVANNA

JUDGEMENT

(1.) THIS appeal by the complainant in C.C. No. 36877/2002 on the file of the XXII Additional CMM, Bangalore, is directed against the judgment and order dated 27.12.2005 passed in the said case acquitting the respondent/accused of the charge levelled against him for the offence punishable under Section 138 of the Negotiable Instruments Act ( for short, 'N.I. Act ™).

(2.) THE appellant filed a private complaint under Section 200 of Cr.P.C. alleging the offence punishable under Section 138 of the N.I. Act against the respondent/accused inter alia alleging that he was a longstanding client of the respondent, an Advocate by profession and he had entrusted several briefs to accused; that the accused availed hand -loan and towards the discharge of the legal liability, the accused issued a cheque dated 10.3.2002 drawn on State Bank of Mysore, CBAB Complex Branch, Bangalore, for Rs. 2,00,000/ - (Rupees Two Lakhs) and when the said cheque was presented for encashment, the same was returned unpaid with the banker ™s endorsement 'Funds Insufficient ™ ; that he immediately caused a legal notice on the accused informing him about the dishonour of the cheque and calling upon him to pay the amount covered under the cheque within the period allowed under law; that the respondent/accused, instead of complying with the demand made therein, caused an untenable reply and failed to pay the amount covered under the cheque within the statutory period. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act.

(3.) IN support of his case, the complainant examined himself as P.W. 1 by filing his examination -in -chief by way of affidavit. As the accused failed to cross -examine the complainant in spite of grant of time, the learned Magistrate proceeded to examine the accused under Section 313 of Cr.P.C. and then disposed of the matter by convicting the accused. In the appeal filed by the respondent/accused, the judgment of conviction was set aside and the matter was remanded back to the trial Court for affording further opportunities to the parties. Thereafter, the complainant was cross -examined and the accused also examined himself as DW.1 and produced several documents. The defence of the accused was that, at no point of time he availed hand -loan from the complainant nor he issued the cheque in question for discharge of any debt due by him to the complainant. According to him, the complainant misusing his close acquaintance as a client and later as a family friend somehow managed to get possession of the cheque in question and misused the same. It was also his further defence that the complainant had borrowed a sum of Rs. 2,50,000/ - from him on various occasions and in the month of April 2000 while taking back all the briefs entrusted to him, the complainant towards amount due by him, executed a promissory note in his favour dated 27.4.2000 and therefore, there was no occasion for him to issue the cheque dated 10.3.2002.