T.B. VENKATESH Vs. M. NARAYANA SWAMY

JUDGEMENT

(1.) THIS appeal by the Complainant is directed against the judgment and order dated 26 -4 -2006 passed by the 20th Addl. Chief Metropolitan Magistrate, Bangalore City in C.C No. 19636/2003 acquitting the respondent -accused of the charge levelled against him for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'the Act ™).

(2.) THE appellant filed a private complaint under Section 200 Cr.P.C against the respondent alleging offence under Section 138 of the Act inter alia contending that the accused had borrowed huge sums of money from the complainant from time to time as hand loan; that in order to discharge the said loan the accused issued cheque bearing No. 067141 dated 5 -6 -2008 drawn on Syndicate Bank, K.R. Puram, Bangalore, for Rs. 5,98,822/ -; that when the said cheque was presented for encashment, the same was returned unpaid with banker ™s endorsement "Account closed ; that immediately the complainant caused a legal notice to the accused informing him about the dishonour of the cheque and calling upon him to pay the amount covered under the cheque; that though the accused received the notice, failed to comply with the demand made thereunder, thereby the accused is guilty of offence punishable under Section 138 of the Act.

(3.) THE defence of the accused was that during the year 1998 the complainant became partner of a firm called M/s, Media Printers as per the terms of Deed of Partnership Ex. P1 by investing Rs. 20 lakhs as his capital contribution; that on 1 -4 -2000 the complainant retired from the said firm as evidenced by Ex. D2 Deed of Partnership (Retirement -cum -Continuance of Partnership) dated 1 -4 -2000 whereunder the amount payable to the complainant towards his capital investment was determined at Rs. 9,01,178.29 ps. that at the time of signing the reconstitution deed, as security, the accused delivered the cheque in question to the complainant: that though subsequently the aforesaid amount due to the complainant on account of his retirement from the partnership firm was paid, the complainant did not return the cheque in question but the same has been subsequently misused by the complainant. Thus, according to the accused, the cheque in question was not issued for discharge of any debt or liability due to the complainant. It was also Ms defence that the cheque in question relates to the current account held in the name of partnership firm; during the period when the complainant was one of the partners, and even to the knowledge of the complainant the said account was closed on 20 -8 -2002, as such, the complainant knew very well that the cheque relate to the partnership firm and handed -over to him at the time of parties signing the reconstitution deed dated 1 -4 -2002 and not on 5 -6 -2003 as sought to be made -out. Therefore, the accused contended that he is not guilty of offence punishable under Section 138 of the Act.