SRIDHARA G. BHAT Vs. RAMACHANDRA ACHARYA

JUDGEMENT

(1.) THIS appeal is preferred by the complainant being aggrieved by the judgment and order passed by the first appellate Court passed in Crl. A. No. 16/2006, wherein the first appellate Court has allowed the appeal and set aside the judgment and order passed by the trial Court in C.C. No. 814/2003.

(2.) BRIEF facts of the complainant's case is, respondent herein borrowed a sum of Rs. 1,80,000/ - from the appellant towards his business and in this regard issued a cheque bearing No. 897014 dated 9.12.2002 for a sum of Rs. 1,80,000/ - drawn on Syndicate Bank, Puttur Main Branch, Puttur. Appellant presented the said cheque for encashment on 9.12.2002 through his banker Corporation bank. On 11.12.2002 bank issued an endorsement informing the appellant that cheque was dishonoured for 'insufficient funds'. Thereafter, appellant got issued legal notice dated 13.12.2002 demanding payment of money and respondent sent the reply denying the allegations. Thereafter, appellant herein filed the complaint before the trial Court under Section 200 of Cr.P.C. against the respondent herein for the alleged offence punishable under Section 138 of the Negotiable Instruments Act. Respondent herein has appeared before the trial Court and the trial Court after considering the materials placed on record both oral and documentary, has ultimately convicted the respondent for the offence under Section 138 of the Negotiable Instruments Act and imposed fine of Rs. 1,85,000/ -. Being aggrieved by the judgment and order of the trial Court, respondent herein preferred an appeal before the Fast Track Court, Puttur in Crl. A. No. 16/2006 challenging the legality and correctness of the judgment and order passed by the trial Court. The first appellate Court, after re -appreciating the materials placed on record, ultimately, has allowed the appeal and set aside the judgment and order of the trial Court and acquitted the respondent -accused. Against the said judgment and order of the first appellate Court, present appeal is preferred by the complainant.

(3.) LEARNED counsel for the appellant has submitted that the signature on the cheque is admitted as that of respondent -accused. The defence of the respondent -accused is that he had borrowed the money from one Rajesh Shetty and as a security for the said loan, gave five signed cheques to said Rajesh Shetty and when Rajesh Shetty demanded for repayment of the amount from him, respondent -accused paid Rs. 10,000/ - out of the total amount of Rs. 15,000/ - said to have been borrowed. When the accused insisted Rajesh Shetty to issue receipt for Rs. 10,000/ -, he told that he will issue the receipt after payment of the entire amount and went on postponing the matter. In that regard there was difference of opinion between Rajesh Shetty and the respondent -accused. Taking undue advantage of the same, Rajesh Shetty gave one cheque to the complainant and through the complainant has got filed the case. It is submitted that when such defence has been taken in the reply notice as well as before the Court, no supporting material has been placed by the respondent -accused and as such, the trial Court has rightly convicted the accused. This aspect has not been considered by the first appellate Court. Hence, it is submitted that appeal may be allowed.