K.N.KESHAVANARAYANA J. - (1.) THERE has been a delay of 145 days in filing this appeal. Seeking condonation of said delay, the appellant has filed I.A.2/2011. In the affidavit filed in support of the application, the appellant has stated that the judgment under appeal was passed on 21.2.2011, application for grant of certified copy was filed on 24.2.2011 and the same was obtained on 7.3.2011. According to the appellant, he did not know about the pronouncement of the judgment and that he was under the impression that the said case was still pending, therefore, he did not go to the office of his Advocate at Mudubidri and that he came to know about the judgment only when a copy of the same was produced in O.S. No. 22/2008 filed by him against the respondent/accused before the. Civil Judge (Sr.Dn.), Karkala during the course of his cross -examination on 2.8.2011 and immediately thereafter he contacted his lawyer and got confirmed about the judgment of acquittal. Thus, according to the appellant he was prevented from sufficient causes from filing the appeal within the period of limitation. Though the respondent has been served with notice he has remained absent and unrepresented.
(2.) I have heard the learned counsel for the appellant both on the application and on merits of the appeal regarding admission. Having heard the learned counsel and on perusal of the judgment under appeal, I am of the considered opinion that there are no merits in the appeal and therefore no purpose will be served by condoning the delay. The learned Magistrate has extracted the portion of the evidence of the appellant/complainant wherein the complainant has completely supported the defence version. According to the appellant, he lent hand loan of Rs. 10,000/ - to the respondent during the month of July 2007 and towards discharge of the said loan the respondent issued the cheque in question and when the said cheque was presented for encashment it came to be returned with banker's endorsement "insufficient funds" and though a notice of demand was served on the respondent, he has failed to comply with the said demand. However, the defence of the accused was that there was certain monetary transaction between the complainant and one Dinesh and in respect of said transaction, as security, the complainant obtained blank cheque from the accused and the said cheque had been mis -used by the appellant. In the evidence PW.1 has admitted monetary transaction between himself and said Dinesh. He has also admitted that in respect of the said monetary transaction, he had collected the property documents from the respondent/ accused who stood as guarantor. He has also admitted that he had obtained blank cheque from the respondent/accused and that he filled up the blank cheque. It is his further say in the evidence that he paid the loan amount to the respondent - accused by means of cheque and he is in possession of the documents to evidence the same. However those documents have not been produced. As noticed supra, in the complaint it is not stated that the loan amount was paid by means of cheque. Of course, the respondent - accused did not enter the witness box. However, from the evidence of the appellant/complainant itself it is sufficient to hold that the statutory presumption under Section 139 of the N.I. Act stood rebutted. It is fairly well settled that in order to prove his defence the accused is not required to enter the witness box. He is entitled to probabilise his defence theory by relying on the very evidence of the prosecution or the complainant. In the case on hand, from the very admission made by PW.1 in the cross -examination it is clear that he had received blank cheque from the respondent as security in respect of monetary transaction between the complainant and Dinesh and that the appellant had filled up the blank cheque and presented it for encashment. Though in the evidence the complainant has stated that the loan amount was paid by means of cheque to the accused, no details regarding the same has been produced. In the light of the evidence of PW.1, the learned Magistrate is justified in acquitting the accused. The findings recorded by the court below are sound and proper, regard being had to the admissions made by PW.1 in his cross -examination. Therefore, the judgment under appeal cannot be termed as perverse or illegal. In addition to this, the explanation offered by the appellant for delayed presentation of the appeal is also not satisfactory. In this view of the matter, the application as well as the appeal are dismissed.;