Mr. Ashoka G. vs Mr. Mantesh

John Michael Cunha, J.—Heard the learned counsel for the appellant.

This appeal is directed against the order dated 18.02.2016 passed by the XIII ACMM., Bengaluru in C.C. No. 18922/2014, whereby the learned Magistrate has acquitted the respondent herein for the offence punishable under Section 138 of N.I. Act.

The brief facts of the case are that; the complainant herein filed a complaint against the respondent under Section 200 of Cr.P.C. r/w 138 of N.I. Act alleging that the accused approached for financial assistance of Rs. 1,00,000/- and borrowed a sum of Rs. 1,00,000/- from the complainant on 04.12.2012, promising to repay the said amount within 10 months and issued a cheque bearing No.885016 dated 12.11.2013 for Rs. 1,00,000/- drawn on State Bank of India, West of Chord Road Branch, Bengaluru in repayment thereof. The said cheque when presented for encashment, came to be dishonoured as Yunds insufficient''.

Before the trial Court, the complainant examined himself as PW. 1 and produced original cheque marked as Ex.PI, the Bonk endorsements Exs.P2 and 3, Copy of the legal notice Ex.P4, RPAD receipts and postal acknowledgement Exs. P5 to P7, Complaint Ex.PB and the loan agreement Ex.P9. The respondent did not cross-examine the complainant nor adduced any rebuttal evidence. However, the learned Magistrate rejected the complaint solely on the ground that the copy of the legal notice has not been placed before the trial Court.

Learned counsel submits that the copy of the notice was produced along with the complaint but inadvertently, the same was not marked in evidence. The assertion made in this regard has not been disputed by the respondent. Even during bearing neither the respondent nor his counsel are present before the Court. Looking into the material produced by the appellant, it is evident that there was a monetary transaction between the parties. The appellant has substantiated his contention by producing cogent material before the Court. It was not the contention of the respondent that no notice was issued by the complainant before initiation of the proceedings. The complainant has produced the postal acknowledgment for having served the said legal notice. Under the said circumstance, it was not proper on the part of the trial Court to reject the complaint when the issuance of legal notice was not specifically disputed by the respondent/accused.

In that view of the matter, the appeal deserves to be allowed. Hence, the appeal is allowed. The impugned order dated 18.02.2016 passed by the XIII ACMM., Bengaluru in C.C. No. 18922/2014 is set aside. The matter is remitted to the trial Court for retrial. The trial Court shall commence the proceedings from the stage of examination of the complainant. The parties are directed to appear before the trial Court on 27.03.2017.