NAGARAJA UPADHYA Vs. M SANJEEVAN

JUDGEMENT

(1.) THIS appeal by the complainant is directed against the judgment of acquittal passed by the Court of the Addl. Civil Judge (Jr. Dn. ,)Udupi, in Criminal Case No. 3325/1997 dated 10-7-2001, wherein the respondent has been acquitted for the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'act' ). The essential facts of the case leading up to this appeal with reference to the rank of the parties before the Trial Court are as follows:

(2.) THE appellant herein filed a private complaint under Section 200 Cr. P. C. , against the accused alleging that the accused had borrowed a sum of Rs. 25,000/- from the complainant in January 1996 on the pretext that he needed the money urgently for the medical treatment of his close relative. The complainant lent the money in cash, on sympathetic grounds since he knew the accused for several years. The accused promised to repay the amount within two months and there was no agreement to pay any interest. However, the accused did not bother to repay the amount within two months and after persistent reminders, he issued a Cheque dated 03-06-1997 bearing no. 0076049 of Syndicate Bank Catholic Centre Branch, Udupi, for rs. 19,750/- and when the said Cheque was presented for payment, the same was returned with the endorsement "account closed". Lawyer's notice was issued on 16-6-1997 and the said notice was served upon the accused and the accused has given an untenable reply instead of complying with the demand and wherefore, the complaint that the respondent has committed the offence punishable under Section 138 of the Act. The Trial Court recorded the statement of the complainant and issued summons to the accused and the accused appeared and pleaded not guilty and claimed to be tried. On behalf of the complainant, the complainant was examined as PW 1 and he also examined PW2 to prove the endorsement, Ex. P2 and got marked the documents, Exs. P1 to P5. On behalf of the accused, the accused was examined as DW3 and he also examined DWs. 1 and 2 and got marked the documents, EXs. D1 to D13. The Trial Court after considering the contentions of the Learned Counsel appearing for the complainant-appellant and the accused and appreciating the oral and documentary evidence on record adduced by the parties, held that the complainant has failed to prove that the respondent-accused has committed the offence punishable under Section 138 of the Act and accordingly, acquitted the respondent-accused of the said offence by the judgment dated 10-7-2001. Being aggrieved by the said judgment of acquittal, the compalinant has preferred this appeal.

(3.) I have heard the Learned Counsel appearing for the appellant. Having regard to the contentions urged, the point that arises for determination in this appeal is: