NAGESHWARO RAO Vs. PRADEEP

JUDGEMENT

(1.) This appeal is preferred by appellant/complainant, being aggrieved by the judgment and order of acquittal dated 28.04.2016 in Criminal Appeal No.76 of 2015 on the file of the Additional District and Sessions Judge Gadag, whereby the learned District and Sessions Judge has set-aside the judgment and order of conviction dated 01.10.2015 passed in C.C.No.591/2012 by the First Additional Civil Judge and JMFC-I Court, Gadag and acquitted the respondents for the offence punishable under Section 138 of the Negotiable Instrument Act.

(2.) Brief facts of the case, that the appellant and the respondents herein know each other and the respondents are doing business of publishing books, guides and other study material. The respondents requested appellant to give financial assistance for their business purpose. Appellant as per the request use to lend money, whenever the respondents were in need and in this regard the appellant has given Rs.6,48,400/- as loan amount to the respondents and respondents have agree to pay back the loan amount in the year 2011-2012. However, after obtaining the loan the respondents did not turn up and did not repay of loan of amount and on repeated request made by the appellant the respondents on 28.11.2011 issued cheques to the appellant for repayment of loan amount of Rs.1,00,000/-. After receiving the cheques appellant presented the cheques for collection, however the said cheques were dishonoured due to payment stopped. Accordingly, on 20.12.2011 the appellant issued notice to the respondents calling upon the respondents to pay the cheque amount. After service of notice, the respondents did not pay cheque amount. Hence, the appellant was constrained to file the private complaint for the offence punishable under Section 138 of the N.I.Act. Then the sworn statement of the complainant was recorded and cognizance of the offence was taken and notice issued to the respondent/accused. Accordingly, respondents appeared in the case and at the time of recording the plea, they denied the case of the complainant. Hence, plea was recorded and then the matter was posted for evidence. The appellant examined himself as PW-1 and got marked 7 documents as per Ex.P1 to P7. The respondents examined 3 witnesses as DW1 to 3 and got marked 10 documents. After hearing the arguments the learned JMFC Court Gadag, convicted respondent/accused for the offence punishable under Section 138 of the N.I.Act. Being aggrieved by the judgment and order of the conviction the respondents herein preferred the appeal in Crl.A.No.76/2015 and the appellant herein also preferred the appeal challenging the sentence aspect in Criminal Appeal No.81 of 2015, before the District and Sessions Judge Court at Gadag. The learned Sessions Judge after hearing both sides passed common judgment wherein, the appeal preferred by the respondents/accused came to be allowed and they were acquitted, setting aside the judgment and order conviction passed by the JMFC Court, whereas, the appeal preferred by the complainant/appellant herein came to be dismissed. Being aggrieved by the said judgment and order of acquittal passed in Criminal Appeal No.76 of 2015, on the file of the District and Sessions Judge and challenging its legality and correctness the appellant/complainant is before this Court in this appeal and he challenged the judgment and order of acquittal on the grounds as mentioned at ground No.9 to 22.

(3.) Heard the arguments of the learned counsel appearing for the appellant/complainant and so also the arguments of the learned counsel appearing for the respondent/accused.