R NAGABUSHANA Vs. R NANJUNDAPPA

JUDGEMENT

(1.) This appeal is preferred by the appellantcomplainant being aggrieved by the judgment and order of acquittal dated 13.9.2010 passed by the Additional Civil Judge (Jr. Dn.) and JMFC, Mulbagal, in C.C No.417/2005. The appellant-complainant has preferred the above appeal challenging the legality and correctness of the judgment and order of acquittal passed by the Court below on the grounds as mentioned in the appeal memorandum.

(2.) Brief facts of the case of appellant-complainant is that the accused is the friend of complainant. Since the respondent-accused was in need of the amount for his immediate needs for purchase of land, as such, he approached the complainant to pay him a sum of Rs.50,000/- on 18.12.1999. Accordingly, the accused received Rs.50,000/- from the complainant and agreed to repay the same with interest at 12% p.a. and also return the same whenever the complainant demands and expressing his ability to arrange for the funds, issued a cheque bearing No.0854468 dated 23.03.2000 for sum of Rs.50,000/- in Kolar Gramina Bank, Mulbagal branch. In spite of assurance of the accused to repay the amount, he has not repaid either the principal amount or the interest amount. In spite of repeated demands and oral requests by the complainant and since the accused has not repaid the amount as agreed by him, the complainant presented the cheque for collection through SBM, Mulbagal branch on 04.09.2000. The said cheque returned because of "Insufficient of funds' since the accused has not arranged the funds. The complainant had no other alternative and he got issued a legal notice dated 13.09.2000 through his advocate to the accused by means of RPAD. The said legal notice was duly served on the accused, but he did not repay or reply to the terms of notice and thus, the accused committed the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the N.I. Act').

(3.) The Court below recorded the evidence on both sides. On the side of the appellant-complainant, the complainant has been examined as P.W.1 and he has produced four documents Exs.P.1 to P.4. On the side of the respondent-accused, the accused has been examined as D.W.1 and he also examined three independent witnesses as D.Ws.2 to 4 and got marked Exs.D.1 to D.3. After hearing learned Counsel on both sides, ultimately, the trial Court acquitted the respondent-accused holding that the appellant-complainant has not proved his case that the respondent accused has committed the offence under Section 138 of the N.I. Act. Therefore, the appellant-complainant is before this Court in this appeal.