D. MAHADEV Vs. G.K. NARAYANASWAMY

JUDGEMENT

(1.) THE appellant has challenged the Judgment and Order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the N.I. Act" for short] on a trial held by the JMFC., Devanahalli.

(2.) THE facts reveal that the appellant is the complainant, whereas the respondent is the accused before the trial Court. The appellant claimed in his complaint that a sum of Rs.6 lakhs was advanced to the accused as loan and towards repayment of the said amount, the accused is said to have issued 2 cheques bearing Nos.862685 and 862681 for Rs.3 lakhs each on 18.01.2008 and when the said cheques were presented for encashment, they returned with endorsement of insufficient funds. The appellant issued a notice to the respondent, but there was no response. Hence, he filed a complaint before the trial Court to initiate action against the accused for the offence punishable under Section 138 of the N.I. Act. The appellant was examined as P.W.1 and documents Exs.P1 to 7 were marked. During the trial, statement of the accused was recorded under Section 313 Cr.P.C. The accused examined himself as D.W.1 and no document has been admitted in the evidence. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, acquitted the accused. Aggrieved by the Order, the present appeal has been filed.

(3.) IT is the submission of learned counsel for the appellant that the signatures on the cheques are admitted and therefore, he claims that a presumption arises under Section 139 of the N.I. Act to the effect that the debt was due and towards repayment of the said debt the cheques have been issued. Therefore, he claims that as there is no rebuttal evidence, the trial Court was not justified in granting an Order of acquittal. On the other hand, learned counsel for the respondent contends that the appellant has failed to prove advancement of loan of Rs.6 lakhs and further that he has placed on material on record to rebut the presumption.