DHATTATRI Vs. MEENAKSHAMMA W/O BASAVARAJ

JUDGEMENT

(1.) THIS Appeal is filed by the complainant challenging the order of acquittal passed by the II Addl. Civil Judge and JMFC, Shimoga, in C.C.No.242/2011, dated 2nd July 2012 acquitting the respondent -accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) IT is the case of the complainant that accused borrowed a sum of Rs.1,50,000/ - from the complainant -firm on 16.12.2000 for the purpose of improving the business and executed an on demand promissory note agreeing to repay the same with interest at the rate of 24% p.a. On demand by the complainant, accused issued a cheque for Rs.1,62,000/ - drawn on Andhra Bank, Shimoga Branch. On presentation, the same came to be dishonoured with an endorsement 'insufficient funds'. In spite of issuance of notice, when accused failed to repay the amount, complaint came to be filed.

(3.) IT appears, the issuance of cheque and signature is admitted. The defense taken by the accused is that the cheque was so issued in respect of earlier transaction for which, no cogent evidence is shown nor any document is produced. The presumption under Section 118 of the N.I.Act is that cheque was issued towards legally enforceable debt. It is for the accused to rebut the said presumption and demand stating that the cheque so issued by him was not towards the amount to be recovered, rather it pertains to an earlier transaction. Once the presumption is there, it is for the accused to demonstrate that the cheque was issued towards an earlier transaction and not in respect of current transaction. In this regard, not an iota of evidence is produced much less, there is no satisfactory explanation given as to the earlier transaction by producing some documentary or believable evidence.