SUPER CASSETTES INDUSTRIES LIMITED, BANGALORE Vs. G.M. HULBANNI

JUDGEMENT

(1.) THOUGH this appeal is listed for orders regarding non -receipt of the records from the Trial Court, the matter is heard on merits by consent of the learned Counsel appearing on both sides. Having regard to the short question involved in this appeal, the records are not very much necessary for disposal of this appeal. This appeal is by the complainant in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") and is questioning the legality and correctness of the order of acquittal passed by the Appellate Court in the appeal filed by the respondent -accused after setting aside the judgment of conviction recorded by the Trial Court.

(2.) THE appellant filed complaint alleging offence under Section 138 of the Act against the respondent -accused inter alia contending that towards discharge of his liability outstanding to the complainant, the accused issued cheque dated 31 -7 -1993 for a sum of Rs. 87,966/ - drawn on Syndicate Bank, Gadag and when the said cheque was presented for encashment, the same was returned unpaid with the banker's endorsement "insufficient funds" and inspite of service of statutory notice, the respondent has failed to pay the amount covered under the cheque as such he has committed the aforesaid offence.

(3.) AFTER hearing both sides, the learned Magistrate found the respondent guilty of the offence alleged against him and held that presumption under Section 139 of the Act required to be drawn in favour of the complainant and against the respondent, having regard to the fact that the cheque in question relate to the account held by the respondent with a Banker and it bears his signature and that the respondent -accused has failed to produce any evidence to rebut the said presumption. The learned Magistrate also held that the defence of the accused that the notice was not served on him cannot be accepted for the reason that the notice issued as per Ex. P. 4 has been duly served on the respondent personally. For this purpose, the learned Magistrate exercising his power under Section 73 of the Indian Evidence Act, 1872 compared the signature purported to be that of the accused on the copy of notice Ex. P. 4 with the admitted signature of the accused and concluded that the signature found on Ex. P. 4 is similar to the admitted signature of the accused. In that view of the matter, the learned Magistrate held that the complainant has proved that he issued notice within the statutory period specified under Section 138(b) of the Act and the same has been served on the accused. In that view of the matter, the learned Magistrate convicted the respondent for the said offence. Aggrieved by the said judgment of conviction, the respondent filed appeal before the learned Sessions Judge and the Appellate Court though concurred with the findings of the Trial Court with regard to the presumption under Section 139 of the Act and the failure on the part of the accused to rebut the said presumption, however, accepted the contention of the accused that the complainant has not proved issuance of notice as required by Section 138(b) of the Act. Therefore, the Appellate Court reversed the judgment of conviction and ordered acquittal of the respondent -accused. Aggrieved by the said judgment, the complainant is in appeal before this Court.