H D MALLIKARJUN GOUDA Vs. MOHSIN J KHAJI

JUDGEMENT

(1.) THIS appeal is preferred by aggrieved complainant challenging the order of acquittal passed by II Addl. Civil Judge & J.M.F.C., Bellary dated 12.02.2013.

(2.) THE brief facts of case are that the appellant complainant has lodged a complaint against the present respondent accused under Section 200 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for brevity). The complaint discloses that accused is the resident of Belgaum, complainant and accused were very well acquainted with each other and as the accused was in dire need of finance, complainant has paid him a sum of Rs.5,00,000/ -. The accused had assured complainant that he will repay the said amount within one month. Thereafter he has issued a cheque bearing No.0012011 dated 23.06.2006 drawn on United Western Bank, Belgaum. On presentation of said cheque, it came to be dishonoured with an endorsement 'Insufficient Funds'. It is the specific case of complainant that he has got issued a legal notice on 24.07.2006 and the same has been served on accused. However, the accused has managed to return the said notice sent by R.P.A.D. Inspite of service of notice, accused has not repaid the said amount within specified period of time. Hence, complainant has filed complaint against the accused. The accused has appeared before trial Court and has taken up a specific defence that he has lost his cheque book pertaining to the said Bank in the year 2003 itself and he has given a paper notification and has thought that the said cheque book would be returned if it is found by any person. It is also his case that he has intimated his Banker to close his account as he had lost his cheque book. The further defence of accused is that the notice under Section 138 of N.I. Act has not been served upon him and has been sent to the wrong address. Therefore, complaint itself is not maintainable under Section 138 of N.I. Act. The specific contention of accused is that he and complainant were not conversant with each other and he had no occasion to transact with complainant and the lost cheque has been mis -used by complainant. Therefore, on these grounds the accused has challenged the complaint filed by complainant. The complainant has led evidence before trial Court as P.W.1 and got examined two more witnesses as P.Ws.2 and 3 and got marked Exs.P -1 to P -15. The accused was also examined himself as D.W.1 and got marked Exs.D -1 to D -4. After analysing the entire materials on record the trial Court has come to a conclusion that the complainant has not proved the case beyond reasonable doubt. Therefore, the trial Court has recorded the judgment of acquittal, which is called in question before this Court.

(3.) LEARNED counsel for appellant has strenuously contended that the trial Court has not properly appreciated the materials on record and has failed to draw a presumption under Section 139 of the N.I. Act, which clearly supports the case of complainant. As the accused has not denied the signature on the cheque, the presumption under Sections 118 and 139 of N.I. Act automatically comes to the aid of complainant. Secondly, he contends that notice has been issued to the last known correct address of accused, but he has intentionally avoided the service of said notice. It is further contended that the accused has admitted during the course of his cross -examination that in the application filed under Section 70(2) of Cr.P.C. before the trial Court for recalling of the warrant issued against him, it has been mentioned that notice was issued to his previous address. Therefore, he contends that in view of the presumption which is not successfully rebutted by the accused and notice being served the trial Court ought to have convicted the accused and sentenced him for the offence punishable under Section 138 of the N.I. Act. Therefore, the trial Court has committed a serious error in acquitting the accused.