TMI Blog2022 (3) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Magistrate has not considered the materials placed before the Court properly, while acquitting the accused and has also not considered the statutory presumption in favour of the complainant under Sections 118 and 139 of N.I. Act. As such, the trial Court has erred in acquitting the accused and the same requires to be interfered by this Court. This is a fit case to reverse the finding of the trial Court - the point under consideration is answered in the affirmative - Appeal allowed. - Criminal Appeal No. 413/2019 - - - Dated:- 23-2-2022 - Rajendra Badamikar , J. For the Appellant : Mukunda P., Advocate For the Respondents : Ajith Kumar A. S. , Advocate JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel appearing for the parties on both sides, the same is taken-up for disposal. 2. This is an appeal filed by the complainant/appellant under Section 378(4) of Criminal Procedure Code, 1973 ('Cr.P.C.' for short) challenging the judgment of acquittal dated 18.01.2019 passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru ('trial Court' for short), whereby the learned Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the accused in respect of the offence punishable under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the appellant/complainant has preferred this appeal. 8. Heard the learned counsel for the appellant/complainant and learned counsel for the respondent/accused. Perused the records. 9. Learned counsel for the appellant would contend that the judgment and order of acquittal is illegal and contrary to law and evidence. He would further contend that, admittedly, the cheque in question belongs to accused and the accused admits his signature on the cheque. Hence, the trial Court has failed to draw a presumption under Section 139 of the N.I. Act in favour of the complainant. Further, he would contend that, though the trial Court comes to a conclusion that the presumption is not rebutted, but erroneously observed that ingredients of Section 138 of N.I. Act have not been established by the complainant and the financial status of the complainant to advance loan of ₹ 1,75,000/- is not established. He would further contend that the financial status of the complainant was never challenged during cross-examination of P.W. 1 and the trial Court ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further admits that the cheque belongs to him. He has also admitted that, he is running a Military Hotel. When the cheque and signature have been admitted by accused, it is mandatory on the part of the court to draw a presumption in favour of the complainant under Section 139 of N.I. Act regarding issuance of cheque towards discharge of legally enforceable debt. Further, the said presumption is a rebuttable presumption and it is for the accused to rebut the presumption. But, for rebutting the presumption, mere explanation or denial is not sufficient and the accused is required to place some material evidence before the Court. 14. It is the contention of the accused that, he has issued the cheque under Ex. P1 for ₹ 30,000/- as security to one Mr. Balu in respect of purchase of chicken, for his hotel business. Further, it is contended that the said cheque has been misused by the complainant, by colluding with the said Balu. However, it is to be noted here that, admittedly the accused has not issued any cheque for ₹ 30,000/-. If at all, he had issued the cheque as security to one Balu, he could have endorsed the figure of ₹ 30,000/- on it. But, Ex. P1 disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant was not at all challenged by the accused. Hence, the trial Court was misconceived the evidence and observed that the source of income and existence of debt is not proved by the complainant, without considering the presumption under Section 139 of the N.I. Act. No doubt, P.W. 1 was cross-examined regarding non-production of document to show that, he was possessing ₹ 1,75,000/- in October, 2016 and non-execution of any document, but, the financial status was not denied. Under such circumstances, the trial Court has erred in making observation that, accused has challenged the financial status of the complainant. In this context, the learned counsel for the appellant has placed reliance on a decision of the Co-ordinate Bench of this Court in Criminal Appeal No. 2109/2017 [V.R. Shresti Vs. Bhaskar P.] dated 15.10.2019 and the facts and circumstances of the said case are directly applicable to the case on hand. In the instant case also, the accused has not given any reply to the notice and in cross-examination, he admits that the cheque belongs to him and also the receipt of notice, but did not take any steps. As such, in the absence of any rebuttal evidence, the presu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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