JUDGMENT : G Basavaraja, J. The complainant/appellant has preferred this appeal against the judgment of acquittal passed by the XXI Addl. C.M.M, Bangalore in C.C No. 961/2012 dated 21.05.2014. 2. For the sake of convenience, the parties herein are referred to as per their status before the trial Court. 3. Brief facts leading to this appeal are that the complainant has filed a complaint under Section 200 of Cr.P.C for the offence punishable under Section 138 of NI Act. It is alleged in the complaint that the accused and complainant are family friends and they know to each other since several years. The accused has approached the complainant in the month of June-2011 for financial assistance of Rs.4,00,000/- for his family necessities and discharged his legal. The complainant has paid a sum of Rs.4,00,000/- to the accused by cash, as a hand loan. The accused agreed to repay the loan within 5-6 months with nominal interest. The accused has not kept his words, and has not paid the amount. The complainant approached the accused personally and demanded for repayment of hand loan with interest. The accused has issued a cheque bearing No.018322 dated 04.11.2011 drawn on Canara Bank, Hombegowda Nagar Branch, Bangalore for Rs.4,00,000/- . The cheque was presented for encashment through State Bank of Mysore, Vyalikaval Branch, Bengaluru on 04.11.2011 itself, but the cheque was returned with an endorsement “Funds Insufficient”. The bank has issued a memo dated 16.11.2011, it was returned to the accused, but he has not responded properly. Subsequently, complainant has issued another legal notice on 28.11.2011 by RPAD to his residential address as well as work place. The legal notice was served on the accused. The accused has not kept sufficient balance in his account, when the cheque was presented for encashment. Thus, the accused has committed the offence punishable under of N.I Act. 4. The Court has taken cognizance of the offence and summons was issued to the accused. In response to summons, the accused has appeared through his counsel and enlarged on bail. Substance of plea was recorded. Accused pleaded not guilty and claimed to be tried. 5. To prove the guilt of the accused, the complainant was examined as PW1 and produced 5 documents marked as Exhibits P1 to P5. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of PW1. Substance of plea was recorded. Accused pleaded not guilty and claimed to be tried. 5. To prove the guilt of the accused, the complainant was examined as PW1 and produced 5 documents marked as Exhibits P1 to P5. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of PW1. He has adduced evidence of two witnesses as DW1 and DW2 and produced 13 documents as Exhibits DW1 to DW13. 6. Having heard the arguments on both sides, the trial Court has acquitted the accused. Being aggrieved by this judgment of acquittal, the complainant has preferred this appeal. 7. The learned counsel for the appellant would submit that the judgment passed by the learned Magistrate acquitting the respondent is opposed to law and the same is contrary to the evidence on record. The learned Magistrate ought to have drawn adverse inference on the fact, that despite receipt of notice, the respondent has not replied. In fact, this crucial aspect does not find place in the discussion while arriving at conclusion. The trial Court has completely failed in appreciating the fact that documents produced by the respondent are irrelevant and the respondent deliberately created a story to deviate the attention of the Court. In the first place, respondent having failed to reply to the notice clearly shows that entire story is an afterthought. If the contention pleaded by the respondent is to be believed, the first question that arises for consideration is, why such a point was not raised by replying to the notice. 8. The Learned Magistrate has failed to take into the consideration that entries made in the counter foil, including the entry dated 30.06.2009, have been made by the respondent himself. Consequently, Exhibit D9 has no evidentiary value, as all the entries are made by respondent. On the other hand, respondent could have produced the bank passbook, which would have clearly revealed the entries of cheque before and after the cheque number in question. In fact in the cross-examination, the respondent has replied that he is unable to produce the passbook for the reasons known to him. 9. The learned Magistrate ought to have drawn adverse inference in respect of such conduct of the respondent. The entries in the passbook being valid and acceptable evidence, there was no reason for the respondent to conceal the best evidence available. 9. The learned Magistrate ought to have drawn adverse inference in respect of such conduct of the respondent. The entries in the passbook being valid and acceptable evidence, there was no reason for the respondent to conceal the best evidence available. This deliberate concealment of pass book clearly reveals the cleverly-woven false story to defend himself and to escape from the liability. 10. The holding of trial Court that the appellant had no capacity to lend Rs.4,00,000/- is contrary to evidence on record. The respondent has himself admitted that he has availed loan from the appellant on several occasions and it is believable that appellant had borrowed Rs.50,000/- from his friend to lend Rs.4,00,000/- to respondent. 11. The Learned Magistrate has heavily relied on the evidence of PW2, which is contrary to the procedure under Section 138 of NI Act. The reading of judgment under the appeal makes it abundantly clear that, the trial Court has conducted the proceedings like a civil suit instead of summary proceedings. Hence, on all these grounds, sought for allowing this appeal. 12. As against this, learned counsel for the respondent would submit that in the complaint and evidence of PW.1 and also in Notice, PW.1 has stated that the accused has approached the complainant during the month of June-2011 for financial assistance of Rs.4,00,000/- for his urgent family necessities and also to discharge the legal debts. At the time of receiving hand-loan, the accused has undertaken and promised the complainant that same will be repaid within 5-6 months with nominal interest. The accused has not kept his words regarding repayment of hand-loan as agreed by the accused. The accused has failed to repay the same within the stipulated period of 5-6 months. The complainant approached the accused personally and demanded to repay the hand loan along with nominal interest but without repaying hand-loan amount, the accused had issued a cheque bearing No.018322 dated 04.11.2011. 13. In the cross-examination of PW.1, he has clearly admitted that on 05.06.2011, the accused has issued a cheque by mentioning the date 04.11.2011. He also admitted in his cross-examination that in the complaint it is not stated that the accused has issued the cheque on the date of borrowing loan. The same is contrary to each other. 13. In the cross-examination of PW.1, he has clearly admitted that on 05.06.2011, the accused has issued a cheque by mentioning the date 04.11.2011. He also admitted in his cross-examination that in the complaint it is not stated that the accused has issued the cheque on the date of borrowing loan. The same is contrary to each other. During the course of cross-examination of PW.1, PW.1 has stated that from 30.06.2009 to 06.06.2011 there was no monetary transaction between the accused and the complainant. But he has admitted in Page-4 of the cross-examination that accused has remitted an amount of Rs.6,000/- on 21.04.2010, Rs.6,000/- on 16.06.2010, Rs.6,000/- on 14.05.2010, Rs.6,000/- on 26.10.2010, Rs.10,000/- on 16.11.2009, Rs.10,000/- on 15.01.2010, Rs.10,000/- on 11.10.2010, Rs.6,000/- on 18.10.2010. Accordingly, he has remitted an amount of Rs.60,000/-. The respondent also produced Exs.D1 to D8 to show the remission of amount of Rs.60,000/- by way of Bank Challans. 14. Ex.D10 reveals that the respondent borrowed a loan of Rs.40,000/- to pay the hospital charges which is admitted by PW.1. The petrol bunk is not standing in the name of respondent, the same is standing in the name of Laxmiprasad, who is brother of the accused. Therefore, the respondent has not borrowed the loan for purchase of petrol to the petrol bunk. DW.2, the mother of the accused has clearly deposed that they have borrowed the loan for purchase of petrol for petrol bunk. 15. The trial Court has properly appreciated the evidence on record in accordance with law and facts. Absolutely, there are no grounds to interfere with the impugned judgment of acquittal passed by the trial Court and sought for dismissal of the appeal. 16. Having heard the arguments on both sides and on perusal of the materials, the only question that arise for my consideration is: “Whether the trial Court is justified in acquitting the accused for the offence under Section 138 of N.I Act?. 17. Before appreciation of evidence on record, it is necessary to mention the recent judgment of the Apex Court in the Case of CONSTABLE 907 SURENDRA SINGH AND ANOTHER v. STATE OF UTTARAKHAND passed in Criminal Appeal No.355 of 2013 connected with Criminal Appeal No.788 of 2013 decided on 28 th January, 2025. 17. Before appreciation of evidence on record, it is necessary to mention the recent judgment of the Apex Court in the Case of CONSTABLE 907 SURENDRA SINGH AND ANOTHER v. STATE OF UTTARAKHAND passed in Criminal Appeal No.355 of 2013 connected with Criminal Appeal No.788 of 2013 decided on 28 th January, 2025. In the said judgment, relying on the decisions in the case of BABU SAHEBGOUDA RUDRAGOUDAR AND OTHERS v. STATE OF KARNATAKA reported in (2024)8 SCC 149 ; in the case of CHANDRAPPA v. STATE OF KARNATAKA reported in (2007)4 SCC 415 ; and in the case of H.D. SUNDARA v. STATE OF KARNATAKA reported in (2023)9 SCC 581 , the Apex Court has summarized the principles governing exercise of appellate jurisdiction while dealing with an appeal against judgment of acquittal under section 378 of Code of Criminal Procedure. The same are as under: “8. …8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 18. I have examined the materials placed before this Court. It is the specific case of the complainant, as per the complaint, the notice, complaint, sworn statement as well as examination-in-chief of PW1, which is filed by way of affidavit reveal that the accused approached the complainant during the month of June-2011 for financial assistance of Rs.4,00,000/- for his family necessities and to discharge his legal debts, for which the complainant by understanding the financial difficulties of the accused has paid a sum of Rs.4,00,000/- to the accused by way of cash as a hand loan. At the time of receiving the hand loan amount, accused has undertaken and promised him that the said loan amount will be repaid within 5 - 6 months with nominal interest. After 5 - 6 months, the accused failed to repay the same within stipulated period and hence the complainant has approached the accused personally and demanded to repay the hand loan amount along with nominal interest. The accused has issued a cheque bearing No.018322 dated 04.11.2011 drawn on Canara Bank, Hombegowda Nagar Branch, Bangalore, for Rs.4,00,000/- in favour of the complainant by assuring that said cheque will be honored on its presentation. 19. During the course of cross-examination, PW1 has clearly admitted that on 05.06.2011, the accused has issued a cheque by mentioning the date in the cheque as 04.11.2011. Further, he has admitted that in the complaint, he has not stated that accused has issued the cheque on the date of borrowing loan. This admission made by PW1 clearly goes to show that the averments made in the notice, complaint, sworn statement and examination-in-chief are false. PW1 has suppressed the material facts and filed this complaint by suppressing the real transaction between the complainant and the accused. 20. PW1 has stated that from 30.06.2009 to 06.06.2011 there was no money transaction between the accused and the complainant. PW1 has suppressed the material facts and filed this complaint by suppressing the real transaction between the complainant and the accused. 20. PW1 has stated that from 30.06.2009 to 06.06.2011 there was no money transaction between the accused and the complainant. However, he has admitted in the cross -examination that accused has remitted an amount of Rs.6,000/- on 21.04.2010, Rs.6,000/- on 16.06.2010, Rs.6,000/- on 14.05.2010, Rs.6,000/- on 26.10.2010, Rs.10,000/- on 16.11.2009, Rs.10,000/- on 15.01.2010, Rs.10,000/- on 11.10.2010, Rs.6,000/- on 18.10.2010. Accordingly, he has remitted an amount of Rs.60,000/-. The respondent has produced Exhibit D1 to Exhibit D8 to show the remission of the amount Rs.60,000/- by way of bank challans. 21. Exhibit D10 reveals that respondent borrowed a loan of Rs.40,000/- to pay the hospital charges, which is admitted by PW1. Exhibit D9-bank passbook maintained by the respondent reveals that, the cheque in dispute is given to Ramamurthy for Rs.40,000/- (blank cheque). The same is also marked as Exhibit D9(a). The complainant has not placed any materials to discard the contents of Exhibit D9(a). Considering the evidence placed by both parties, the trial Court has rightly held that the accused has rebutted the statutory presumption under Section 139 of N.I Act. 22. With regard to the financial capacity of the appellant is concerned, no doubt the accused has not sent any reply to the appellant. For the first time, before the Court he has taken the defence that the appellant has no financial capacity to lend the amount of Rs.4,00,000/-. 23. The learned counsel for the appellant vehemently submitted his argument in this regard and relied on the decision of the Hon'ble Apex Court in the case of Ashok Singh v. State of Uttar Pradesh and another reported in 2025 SCC OnLine SC 706, in which the Hon'ble Apex Court has clearly held as under: "10. Complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in out view were right in holding on those lines. To that extent, the courts in out view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing the independent materials, namely by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant". 24. In the case on hand, the trial Court has not acquitted only on the basis of financial capacity of the appellant, but trial Court has also examined the inconsistent evidence of PW1 regarding issuance of cheque as alleged in the complaint, notice, sworn statement, examination-in-chief and cross-examination. Therefore, the citation relied by the learned counsel for the appellant will not come to the aid of the complainant to prove his case. 25. On re-appreciation/re-consideration/re-examination of the entire evidence on record, I do not find any legal or factual error in acquitting the accused. Hence, the trial Court is justified in passing the impugned judgment of acquittal. Accordingly, I proceed to pass the following: ORDER Appeal is dismissed