M.K. JEEVANDHAR S/O A.R. KABAYA Vs. MRS. MARGARET MENEZES W/O LATE VICTOR SERAVO, MAJOR, TEACHER, SRI RAMAKRISHNA HIGH SCHOOL, ULSOOR, BANGALORE-560 008

JUDGEMENT

(1.) IN this appeal fifed under Section -378(4) of Code of Criminal Procedure, the legality and correctness of the judgment and Order dated 7.12.2005 passed by XXII Additional Chief Metropolitan Magistrate, Bangalore in C.C. No. 5950/2003 acquitting the respondent/accused of the charge levelled against her for the offence punishable under section -136 of the Negotiable Instruments Act ('Act' for short) is questioned.

(2.) THE appellant filed a private complaint against the respondent alleging the affiance punishable under section -138 of the Act inter alia contending that the accused borrowed a sum of Rs. 51,000/ - from him as loan; that towards discharge of the said debt, accused issued the cheque in question dated 12.2.2003 drawn on State Bank of India, Ulsoor branch, Bangalore; that when the said cheque was presented for encashment, it was returned with and banker's endorsement, "insufficient funds"; that the complainant caused a legal notice dated 19.2.2003 on the respondent/accused notifying her about dishonour of the cheque and calling upon her to pay the amount within the stipulated time; that though the accused received the notice, she has failed to comply with the demands made therein, as such, she has committed the offence punishable under section -138 of the Act

(3.) AFTER the parties lead the evidence, the learned Magistrate on assessment of the oral and documentary evidence, by the Judgment under appeal held that the defence of the accused that the cheque in question was delivered as a blank cheque to the complainant as security for the loan advanced to Dhaneshwari appears to be highly probable and thereby the accused has rebutted the presumption under section -139 of the Act. The -trial Court also noticed that the failure on the pert of the complainant to come out with the specific date on which amount of Rs. 51,000/ - said to have been advanced le also a factor which strengthens the defence of the accused. In that view of the matter, the trial Court held that the complainant has failed to prove the charge levelled against the accused and therefore acquitted the accused and complaint consequently come to be dismissed. Against this Judgment of acquittal, the complainant is before this Court.