JUDGMENT H.B.Prabhakara Sastry, J. - In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, 1973, against the present respondents, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act'), the learned XVI Addl.Chief Metropolitan Magistrate, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), by the judgment dated 26.05.2010, passed in C.C.No.11342/2009, acquitted the respondents/accused of the said offence. Aggrieved by the same, the complainant/appellant has preferred the present appeal. 2. The summary of the case of the complainant in the trial Court is that accused Nos.1 and 2 (respondent Nos.1 and 2 herein) have jointly borrowed a hand loan of a sum of Rs. 4 lakhs from him. Towards the repayment of the said loan amount, the accused issued a cheque bearing No.282221, dated 29.1.2009, drawn on Karnataka Bank Ltd., Sarakki Layout Branch, Bengaluru, for a sum of Rs. 4 lakhs. When the complainant presented the cheque to his Banker for realisation, the same came to be dishonoured for the reason of "insufficiency of funds". Thereafter, the complainant demanding the payment of the cheque amount, issued a legal notice to the accused, who did not meet the demand made in the notice, which constrained the complainant to institute a case against them for the offence punishable under Section 138 of N.I.Act in the trial Court. 3. The respondents who were the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-8. On behalf of the accused, accused No.1 was examined as DW-1 and accused No.2 as DW-2 and got marked one document at Ex.D-1. 4. After hearing both side, the trial Court by its impugned judgment dated 26.05.2010, acquitted the accused of the offence punishable under Section 138 of N.I.Act. 5. The trial Court records were called for and the same are placed before this Court. 6. 4. After hearing both side, the trial Court by its impugned judgment dated 26.05.2010, acquitted the accused of the offence punishable under Section 138 of N.I.Act. 5. The trial Court records were called for and the same are placed before this Court. 6. In view of the fact that the learned counsel for both parties failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was ten years old appeal, this Court by its order dated 14.9.2020, appointed learned counsel Smt.P.V.Kalpana, as Amicus Curiae for the appellant and learned counsel Sri D.Nagaraja Reddy, as Amicus Curiae for the respondent. 7. Heard the arguments of learned Amicus Curiae from both side and perused the materials placed before this Court. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. Learned Amicus Curiae for the appellant in her arguments submitted that the evidence of PW-1 clearly demonstrate that he had the source of income and financial capacity to lend the money. His income from coconut business, chit business and bank balance would clearly show his financial capacity. However, the trial Court only on the ground that he had no financial capacity to lend money, has acquitted the accused of the alleged offence. Learned Amicus Curiae for the appellant further submitted that, when PW-1 in his cross-examination has stated that he was not in talking terms with the accused since December 2008, then how can it is possible for him to steal the cheque in the year 2009. She also submitted that non-filing of any police complaint by the accused also shows that they had issued the cheque in question to the son-in-law i.e., the complainant for the loan taken by them. 10. Learned Amicus Curiae for the respondents in his brief arguments submits that, admittedly the parties stand in close relationship with each other. By stealing a cheque from the accused, the complainant has presented the same before his Banker and after its dishonour, has filed the case only to harass his close relatives. The evidence led by the parties disclose that the complainant had no financial capacity to lend the loan which is claimed by him. Thus, the trial Court has rightly acquitted the accused of the alleged offence. 11. The evidence led by the parties disclose that the complainant had no financial capacity to lend the loan which is claimed by him. Thus, the trial Court has rightly acquitted the accused of the alleged offence. 11. After hearing both side, the points that arise for my consideration are : 1) Whether the complainant has proved beyond reasonable doubt that the accused have committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint? 2) Whether the judgment under appeal deserves an interference at the hands of this Court? 12. The complainant got himself examined as PW-1, who in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. In support of his contention, he got marked the original cheque which was dishonoured as Ex.P-1, the signature of accused Nos.1 and 2 therein at Ex.P-1(a) and Ex.P-1(b) respectively. He got marked the Banker's endorsement for dishonouring the cheque at Ex.P-2, two postal receipts at Exs.P-3 and P-4, copy of the legal notice said to have been issued on his behalf to the accused at Ex.P-5, the Certificate of Posting at Ex.P-6, reply to the notice said to have been given by the accused at Ex.P-7, and returned postal cover addressed to the counsel for the complainant who issued the legal notice on his behalf, at Ex.P-8 . 13. Accused Nos.1 and 2 were examined as DW-1 and DW-2 respectively, who got produced an invitation card of their house warming ceremony at Ex.D-1. Both DW-1 and DW-2 in their evidence have stated that the complainant is their relative, who is a coconut vendor. They have stated that the complainant was visiting their house frequently till January 2009. In between the said period, without their knowledge, he had taken a signed blank cheque from the cheque book of their joint account and after filling the same, he has presented the said cheque before his Banker only to get it dishonoured. They denied that they have availed loan from the complainant for constructing their house. Stating that in April 2007 itself, the house warming ceremony was performed by them, they have produced an invitation card of house warming ceremony of their house at Ex.D-1. They denied that they have availed loan from the complainant for constructing their house. Stating that in April 2007 itself, the house warming ceremony was performed by them, they have produced an invitation card of house warming ceremony of their house at Ex.D-1. Both these witnesses were cross-examined from the complainant side, wherein they stated that with respect to the alleged theft of their cheque, they had not given the police complaint. 14. A perusal of the evidence led from both side go to show that the parties to the case have admitted their relationship. PW-1 himself has stated that, by relation, accused No.1 is his mother-in-law and accused No.2 is his father-in-law. The evidence led by the parties also shows an undisputed fact that the accused are the drawers of the cheque at Ex.P-1. The said cheque was issued from a joint account said to be belonging to the accused. It is also not in dispute that the said cheque was presented for its realisation by the complainant and the same got dishonoured for 'insufficiency of funds' as could be seen from the Banker's endorsement at Ex.P-2. It is also not in dispute that after dishonour of the cheque, the complainant got issued a legal notice to the accused through his Advocate as could be seen from its copy at Ex.P-5. The accused have replied to the said notice as could be seen at Ex.P-7. However, the accused have denied that the cheque at Ex.P-1 was issued by them to the complainant towards any legally enforceable debt. Thus, the question remains for consideration would be whether the complainant would show that the cheque was issued to him by the accused and whether he had the capacity to lend the cheque amount as loan to the accused. 15. Pw-1 in his evidence has stated that he has been doing the coconut business since ten years prior to the date of his evidence. His annual income is from Rs. 30,000/- to Rs. 40,000/-. He has also stated that, apart from coconut business, he was doing chit business and other business, from which he has accumulated money. He had kept about Rs. 2 to Rs. 3 lakhs in his bank account in State Bank of India also. His annual income is from Rs. 30,000/- to Rs. 40,000/-. He has also stated that, apart from coconut business, he was doing chit business and other business, from which he has accumulated money. He had kept about Rs. 2 to Rs. 3 lakhs in his bank account in State Bank of India also. He further stated that since the accused were putting up the construction of their house, they availed loan from him, for which, he gave a loan of Rs. 4 lakhs as required by them and has not obtained any documentation in that regard because they were his close relatives. He has specifically denied that he had stolen the cheque from their house. In the very same cross-examination, the complainant has also stated that he has not been in talking terms with the accused from the year 2008. It is the evidence of the complainant that the accused, who are his relatives, since had undertaken to put up construction of their house, had borrowed a sum of Rs. 4 lakhs from him. The said evidence that the accused in the year 2007 and 2008 were putting up construction of their house is also the evidence of DW-1 and DW-2. The accused themselves have produced the invitation of house warming ceremony at Ex.D-1 which go to show that in April 2007, they performed the house warming ceremony of their newly built house. According to the complainant/PW-1, the alleged loan given by him to the accused was in March 2007, which means, a month prior to the house warming ceremony of the accused. Therefore, the complainant could able to show the purpose for which the loan was said to have been availed by the accused from him. 16. The contention of the accused in the form of defence was that the complainant being their relative was visiting their house frequently till January 2009. As such, during one such visit, he had taken without their knowledge a signed blank cheque from the cheque book belonging to them. The complainant has totally denied the said suggestion made to him in his crossexamination, as well he has denied the same even in the cross-examination of DW-1 and DW-2. The said defence taken by the accused about the cheque in question reaching the complainant requires a detailed analysis. The cheque at Ex.P-1 is dated 29.1.2009. The complainant has totally denied the said suggestion made to him in his crossexamination, as well he has denied the same even in the cross-examination of DW-1 and DW-2. The said defence taken by the accused about the cheque in question reaching the complainant requires a detailed analysis. The cheque at Ex.P-1 is dated 29.1.2009. It is not the case of the accused that the complainant has put the date according to his convenience or that the cheque was given for a future date by the accused themselves. Therefore, it has to be necessarily inferred that the said cheque came in the hand of the complainant in January 2009 only. The said presumption also is required to be drawn under Section 118 of N.I.Act also. According to the accused, the complainant was visiting their house frequently till January 2009. The complainant has denied the same. On the other hand, the complainant in his evidence as PW-1 clearly stated that during December 2008, himself and the accused are not in talking terms. The said statement of PW-1 has not been denied by the accused. Therefore, when the accused was not in talking terms with the complainant from December 2008 itself, how come he can go to the house of the accused in January 2009 and take the cheque in question without their consent or knowledge remains as a question not answered by the accused. Therefore, the contention of the accused that the complainant had taken the cheque in question without their notice or knowledge in January 2009 cannot be accepted as a probability and it does not weaken the case of the complainant. 17. According to the accused, the complainant who was visiting their house till January 2009, had taken the cheque at Ex.P-1 without their knowledge or consent and that the said cheque was duly signed by them. Neither the accused have any where stated as to what made them to keep a blank signed cheque in their house, that too, in a manner as to easily accessible to any of the visitor to their house, nor the accused have even attempted to give any clarification or explanation or details in that regard. Neither the accused have any where stated as to what made them to keep a blank signed cheque in their house, that too, in a manner as to easily accessible to any of the visitor to their house, nor the accused have even attempted to give any clarification or explanation or details in that regard. Therefore, it is not enough for the accused to take a mere defence to rebut the presumption operating in favour of the complainant, but, it is required of the accused to show it to the Court that the defence taken by them are more probable and sufficient to rebut the presumption operating in favour of the complainant. The defence taken by the accused in this case since by itself is with lot of infirmities as observed above, the said contention of the accused cannot be taken as probable and as sufficient to rebut the presumption operating in favour of the complainant. This aspect the trial Court has not considered and has not appreciated in the light of the evidence led by the parties. 18. The argument of learned Amicus Curiae for the respondents/accused was that the complainant had no capacity to lend money. Incidentally, the trial Court too has acquitted the accused after observing that the complainant in order to prove his financial capacity to lend money, should have produced his bank passbook or bank account statement, which he has not done and no cogent evidence was placed to show his capacity. As such, it opined that, he had no capacity to lend money, which leads to draw an inference that there existed no legally enforceable debt. On the said point, if we analyse the evidence of the parties, the evidence of the complainant, both his examination-in-chief and his cross-examination, would go to show that he was having income not from a single source, but, by multiple sources. Admittedly, he was a coconut vendor. In addition to that, he has also stated that he has involved in chit business, from which, he has gathered money. He further stated that he had kept amount in his back account with State Bank of India. The said statement of the complainant that he had income from three sources has not been specifically denied in his further cross-examination. In addition to that, he has also stated that he has involved in chit business, from which, he has gathered money. He further stated that he had kept amount in his back account with State Bank of India. The said statement of the complainant that he had income from three sources has not been specifically denied in his further cross-examination. Therefore, it is the accused themselves who have elicited the details of the income from the accused and have remained silent without denying the details given by him to show that he had the capacity to lend the cheque amount to the accused. However, the trial Court without noticing that the evidence about the income led by the complainant has remained undenied, has proceeded further expecting the complainant to produce the documents to prove his contention of having financial capacity. The expectation of the trial Court from the complainant to produce the documents to prove his financial capacity was not warranted in the circumstances of the case as analysed above. When the accused themselves have not chosen to question the source of income and financial capacity as given by the complainant, the trial Court need not had to further probe into the matter regarding the financial capacity of the complainant. This go to show that the complainant has proved beyond reasonable doubt that the accused have borrowed a sum of Rs. 4 lakhs from him and the cheque in question was given to him towards the repayment of the said loan and also that the said cheque came to be dishonoured when presented for realisation. He has also issued a legal notice within the period of limitation demanding the cheque amount from the accused. However, the accused did not comply the demand made. Thus, the complainant has proved beyond reasonable doubt that the accused have committed an offence punishable under Section 138 of N.I.Act. In view of the same, the finding given by the trial Court proves to be erroneous and deserves to be set aside and accused deserves to be held guilty of the alleged offence. 19. Accordingly, I proceed to pass the following order: ORDER The Criminal Appeal is allowed . The Judgment dated 26.05.2010, passed by the learned XVI Addl. Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.11342/2009, acquitting the respondents/accused for the offence punishable under Section 138 of N.I.Act is set aside. 19. Accordingly, I proceed to pass the following order: ORDER The Criminal Appeal is allowed . The Judgment dated 26.05.2010, passed by the learned XVI Addl. Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.11342/2009, acquitting the respondents/accused for the offence punishable under Section 138 of N.I.Act is set aside. The respondents/accused Smt.Chandrika, wife of N.Krishna and Sri N.Krishna, son of Nagappa, both residing at No.8, 18th B Main, 7th A Cross, J.P.Nagar II Phase, Marenahalli, Bengaluru-560 078, are convicted for the offence punishable under Section 138 of the N.I. Act and accordingly sentenced to pay in total a fine of Rs. 4,10,000/- in the trial Court within three months from today. In case of default in payment of fine, each of the accused shall undergo simple imprisonment for a period of six months. In case the accused pays the entire fine amount, a sum of Rs. 4,05,000/- be paid to the complainant as compensation and remaining sum of Rs. 5,000/- shall go to the State. Registry to transmit copy of this Judgment along with trial Court records to the trial Court without delay. The Court while acknowledging the service rendered by the learned Amicus Curiae Smt.P.V.Kalpana for the appellant and learned Amicus Curiae Sri D.Nagaraja Reddy for the respondent, recommends honorarium of a sum of not less than Rs. 3,000/- each to them payable by the Registry. The accused is entitled for a free copy of this judgment immediately.