C R NAGARAJ Vs. S M DINESH

JUDGEMENT

(1.) THIS Appeal is preferred by the complainant against the judgment of acquittal of the accused in CC No.382/2003 dated 19.10.2006 on the file of the JMFC II Court, Hubli.

(2.) THE complainant is a retired Medical Officer and accused is his distant relative. The accused was doing business in the name and style of M/s. Revan Siddeshwara Trading Company in APMC Yard, Hubli and later it was renamed as M/s. Sangameshwar Trading Company. The accused is the Proprietor of the said business concern. It is alleged that due to the financial need, the accused had taken a loan of Rs.2 lakhs from the complainant with a promise to repay the same within six months and also he had taken another sum of Rs.1,70,000/ - from the complainant on the same promise and he has issued two cheque bearing No.012527 dated 29.12.2001 for a sum of Rs.1,70,000/ - and another cheque bearing No.343508 dated 27.12.2001 for a sum of Rs.1,70,000/ -. On presentation of the cheque to the Bank, it was dishonoured and notices were sent to the accused. It is the case of the complainant that he has sent three postal covers to the different addresses of the accused and one cover returned with an endorsement 'unclaimed' and two covers returned as 'addressee refused'. As the accused fail to repay the cheque amount after complying the legal procedure, the complainant has filed a private complaint.

(3.) THE learned Magistrate took cognizance, issued summons to the accused and on appearance, the accused denied the transaction, but admitted the signature on the cheque. The learned Magistrate, after examining the parties and recording the statement of the accused u/s.313 of Cr.PC, passed the acquittal judgment. It is seen from the records, on the side of the complainant PW -1 was examined and Exhibits P1 to P6 were got marked. On the side of the accused, DWs.1 to 4 examined and exhibits D1 to D9 were got marked. The learned Magistrate acquitted the accused mainly on the ground that the complainant has not proved the pre -existence of debt and that the complainant has not proved the case beyond reasonable doubt against the accused. It is stated by the learned Magistrate that though the cheque was issued for a sum of Rs.1,70,000/ -, demand notice was issued as per Ex.P5 for a sum of Rs.2 lakhs. Secondly, though the complainant has stated that he had sent notices to the three different addresses, he has produced only one cover and other two notices were not produced. The learned Magistrate, drawing an adverse inference, has come to the conclusion that no presumption can be drawn that the said notices were served on the accused. Therefore, the complainant has failed to prove the case beyond reasonable doubt.