K.R. NANDAKUMAR Vs. RAMA NAIKA

JUDGEMENT

(1.) THE appellant has challenged the Judgment and Order acquitting the respondent for the charge under Section 138 of the Banking Regulation Act [hereinafter referred to as "the N.I. Act" for short] on a trial held by the learned JMFC., Hassan.

(2.) THE facts reveal that the appellant, who is said to be the friend of the respondent, on the request, he advanced a loan of Rs. 3,00,000 -00 on 29.08.2005. Towards the discharge of the said debt, the respondent issued a cheque dated 30.08.2005, drawn on Syndicate Bank for a sum of Rs. 3,00,000 -00. On 02.09.2005, he presented the said cheque for encashment, it returned with the endorsement "insufficient funds". The appellant issued a notice. As there was no compliance, a complaint was filed before the trial Court under Section 200 Cr.P.C. to initiate action against the respondent for the offence punishable under Section 138 of the Act.

(3.) IT is the contention of learned counsel for the appellant that a presumption arises under Section 139 of the N.I. Act about the existence of a debt and the liability to repay the sum and as the cheque -Ex. P1 is admittedly signed by the respondent, he submits that there is no evidence placed on record to rebut the said presumption. He submits that the defence of the accused is inconsistent and he has admitted the liability at least to the extent of Rs. 1,25,000 -00 and there is no consistent version with regard to repayment of the dues under the receipts -Exs. D2 and 3 and therefore, he submits that the trial Court committed an error in accepting the defence and granting an order of acquittal. Furthermore, he submits that as held by this Court, a license under the Money Lenders' Act is not necessary to convict the respondent for the said charge and the trial Court committed an error in granting an acquittal on that ground. Furthermore, he submits that there is no material worth acceptance regarding repayment of the dues and when the respondent admits that there is liability on his part, his admission is sufficient to grant an order of conviction. On these grounds he has sought for setting aside the impugned Judgment and Order and to convict the respondent for tine charge under Section 138 of the N.I. Act.