Sri Adinarayana vs Sri P.N. Sridhar Bhattar

N. Ananda, J.—The learned Magistrate has acquitted respondent (hereinafter referred to as ''accused'') for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). Therefore, appellant (hereinafter referred to as ''complainant'') is before this court. The learned counsel for appellant absent. I have heard learned counsel for respondent.

The learned Magistrate on appreciation of evidence has held that complainant has failed to prove that he had financial capacity to lend a sum of Rs. 1,50,000/- to accused. The learned Magistrate has held that cheque was dishonoured on the ground that account was closed, however account was closed at the instance of bank. Therefore, learned Magistrate following the decision of this Court, reported in Nagaraja Upadhya Vs. M. Sanjeevan, , has held when cheque was dishonoured on the ground that account was closed by banker, an offence u/s 138 of the Act is not attracted.

On re-appreciation of evidence of complainant, I find at the relevant time, complainant was working in a private mill called as "Narayan Silk Mills" on a monthly salary of Rs. 4,000/-. The complainant has wife, two sons and two daughters to care for. The complainant also admitted that one of his sons is chronically ill and complainant was bearing medical expenses. The complainant apart from salary from aforestated Mill did not have any other source of income. The complainant has admitted that he had not taken any document as security while lending loan to accused.

The accused has contended that complainant was in financial crisis. The complainant had approached accused to lend money. The accused pleaded his inability. The complainant pleaded that he would secure loan from one Basavaraju, for such purpose, complainant had obtained a blank cheque from accused.

As could be seen from the endorsement issued by bank, account was closed by banker, as accused had failed to operate his bank account. The bank account of accused was not closed at the instance of accused.

In a decision of this Court, reported in 2008 (1) Crimes 167 (in the case of Nagaraja Upadhya v. M. Sanjeevan), this court has held:--

Negotiable Instruments Act, 1881-Section 138- Complaint alleging dishonour of cheque-Acquittal of respondent accused-Appeal there against by complainant-Evidence on record showed that account of accused was closed on date of issue of cheque and account was not closed on intimation given by accused, but account was closed as per rules of Bank-Again contents of cheque had been filled up by employee of complainant and not by accused and though signature of accused on the cheque was disputed, no steps had been taken to prove that the said signature was that of accused-In view of facts that on date of issuance of cheque, Ex. P. 1, account of accused in the bank had been closed at instance of Bank and not at instance of accused, provision of Sec. 138 of Act held not attracted to case-Trial court rightly appreciated material on record and rightly came to conclusion that complainant had failed to prove that accused had committed offence punishable u/s 138 of Act-Said judgment of acquittal not suffering from any error or illegality so as to call for any interference-Appeal dismissed.

On re-appreciation of evidence, I do not find any reasons to interfere with the impugned judgment. Therefore, I pass the following:--

ORDER

The appeal is dismissed.