MALLAPPA GANGAPPA HALINGALI Vs. SRI BASAVARAJ MURIGEPPA GANI

JUDGEMENT

(1.) THE complainant is in appeal under Section 378(4) of Cr.P.C. against the judgment passed in CRL. A. 107/2007 by which the learned Appellate Judge has set aside conviction of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act' for short), as recorded by the learned JMFC in CC. 832/2005. Heard Sri. S.C. Bhuti, learned counsel appearing for appellant and Sri Mrutyunjay Tata Bangi, learned counsel for the respondent and perused the records in supplementation thereto. Which reveals the following contextual facts: Mallappa Gangappa Halangali -appellant herein initiated prosecution of the respondent for the offence punishable under Section 138 of the Act on the assertive contention that the respondent had borrowed Rs. 1,00,000/ - from him for expansion of his business, agreeing to repay the same within two weeks. However, the respondent failed to keep the promise and on demand made by the appellant issued the impugned cheque dated 26/07/2005, assuring it would be encashed. The cheque on presentation was dishonoured for "insufficient funds" necessitating issuance statutory notice on 23.08.2005 which was duly served on the accused, but he failed to comply with the demand made. Learned Magistrate took cognizance for the offence indicted above and issued process against the respondent, who entered context denying the liability. In the trial that ensued, the complainant tendered evidence as P.W. 1 and relied on 9 documents, while the respondent -accused also tendered the evidence as DW. 1 and placed reliance on 17 documents.

(2.) THE learned trial Judge, on analyzing the evidence, opined complainant's evidence outweighs the defence and thus convicted him and pass the conviction sentencing and directing him to pay Rs. 1,50,000/ -.

(3.) LEARNED counsel for the appellant was at his best in contending accused had admitted the issuance of cheque, his signature thereon and therefore, the burden on the complainant had eased substantially. The burden had shifted on the accused to explain under what circumstance the cheque was issued. He submits, the complainant in his ocular testimony and documentary evidence, which includes impugned cheque -Ex. P. 1, the bank endorsement -Ex. P. 2, copy of the advocate notice by him as -Ex. P. 5. and postal acknowledgement -Ex. P. 7, has proved that the accused had issued the impugned cheque, which was dishonoured and despite issuance of statutory notice, he had failed to clear liability. He submits the proof so laid by the complainant established all the ingredients of the offence under 138 of the Act. Thus the Appellate Judge was in serious error in acquitting the respondent.