M. SHANTHILAL JAIN Vs. S. MANJULA

JUDGEMENT

(1.) The judgment of acquittal passed by the learned Trial Judge in a case related to the dishonour of a cheque in respect of the offence under S.138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') has been assailed in this appeal by the complainant.

(2.) The appellant was the complainant and the respondent was the accused in C.C. No. 5520/2013, on the file of the XXI ACMM, Bengaluru. The appellant was a money lender. The respondent and her husband had borrowed money from the appellant in the matter of purchase of motor vehicles. A cheque (Ex. P4) belonging to the respondent, which was with the appellant, alleged to have been issued towards discharge of the debt was presented for encashment on 05.06.2012 and was returned with an endorsement 'account closed' (Ex. P5), on 06.06.2012. By a notice dated 21.06.2012 (Ex. P6), the respondent was notified (Ex. P7) of the said fact and payment of the cheque amount was demanded. The payment having not been made, a private complaint was filed under S.200 Cr.P.C. alleging commission of offence punishable under S.138 of the Act. Based on the sworn statement, cognizance of the offence was taken and C.C. No. 5520/2013 was registered for the offence punishable under S.138 of the Act. The accused, in response to the summons, appeared and pleaded 'not guilty' and claimed to be tried. The case having been posted for trial, the complainant got himself examined as PW -1 and marked Exs.P1 to P8. The accused, when examined under S.313 of Cr.P.C, denied the liability and got herself examined as DW -1 and marked Exs.D1 to D14. Learned advocates appearing for the parties having addressed the arguments, the learned Trial Judge, having regard to the evidence brought on record and being of the view that there is no money transaction between the parties in the year 2011 and disbelieving the case of the complainant and being of the opinion that the accused has rebutted the presumption by producing cogent evidence and that the complainant has failed to prove his case, as pleaded, has passed the Judgment dated 11.06.2014. Thereby, the accused was acquitted of the offence.

(3.) Sri Rajkumar C, learned advocate, firstly, contended that the learned Trial Judge has failed to correctly appreciate the evidence and, that the finding recorded being perverse, the impugned Judgment is liable to be set aside. Secondly, there is a wrong conclusion, that in the year 2011, money transaction has not taken place. He submitted that in view of Exs.P1 to P3, the issuance of the cheque - Ex. P4 having been proved and the same having been returned as per Ex. P5, the demand was made as per Ex. P6 and there being no reply or the payment of the dishonoured cheque amount and the complaint having been filed in time, the ingredients of the offence under S.138 of the Act has been established. Thirdly, the presumption under Ss.118 and 139 of the Act having not been rebutted, the judgment of acquittal passed is wholly erroneous. Fourthly, the evidence of accused/DW -1 being inconsistent and not credible, ought not to have been accepted and she acquitted of the charge. Learned counsel submitted that impugned Judgment being erroneous and illegal is liable to be set aside and the respondent punished for committing of the offence under S.138 of the Act.