( 1 ) ONLY point that is urged by the learned Counsel for the appellant was that the lower Court erred in coming to the conclusion that Ex. P1-cheque was not issued for the discharge of legally enforceable debt, since the complainant-appellant failed to discharge his initial burden by establishing that Ex. Pl was issued for discharge of a legally enforceable debt or liability and as such, the presumption under section 139 of the Negotiable Instruments act (for short the Act ) cannot be drawn.

( 2 ) THE parties are hereinafter referred to as arrayed by the Trial Court. Though the complaint filed by the complainant was dismissed on several grounds, the said point alone was urged by the learned Counsel for the appellant in this appeal. The Trial Court in view of the reported decisions of this court in B. Mohan Krishna v. Union of india, 1995 (1) ALD 393 (DB) = 1996 crl. LJ 636, and G. B. Lingam v. Vitta Murali krishna Murthy, 1997 (1) ALD (Crl.) 940 (A. P) = 1997 (2) ALT (Crl.) 100, held that the initial burden is on the accused to establish that the cheque was issued in discharge of a legally enforceable debt and then only the burden shifts to the accused to establish that the cheque issued was not of the nature referred to in Section 138 of the act. Whereas, it was contended on behalf of the complainant before the Court below that the evidence of P. Ws. l to 3 is consistent as to advancing of amount by the complainant to the accused and issuing of Ex. P1-cheque by the accused. Therefore, presumption can be drawn that the cheque was issued for discharging a legally enforceable debt.

( 3 ) IN B. Mohan Krishna s case (supra), it was held as under:". . . . . . . the rebuttal presumption under Section 139 of the N. I. Act operates only in favour of a payee or a holder in due course or in favour of a person, without consideration, became the holder of the cheque. . . . . . . . the initial burden is on the complainant to show that the cheque was issued for the discharge of a legally enforceable debt or other liability. Then, the burden shifts to the respondent to establish that the cheque issued was not of the nature referred to in Section 138. . . "

( 4 ) IN G. B. Lingam s case (supra), it was held as follows:". . . . . . when once the respondent takes the plea that the cheque was not issued for the discharge of legally enforceable debt or liability, then the complainant is bound to prove the circumstances under which the cheque was given in his favour and the same is issued in discharge of legally enforceable debt. Unless this initial burden is discharged by the complainant, the presumption available under Section 139 cannot be made use of against the respondent. . . "whereas, the learned Counsel for the appellant herein contends that in view of the authoritative pronouncements of the apex court in Hiten P. Dalai v. Bratindranath banerjee, AIR 2001 SC 3897 = 2001 AIR scw 3861 = 2001 (6) SCC 16, and k. N. Beena v. Muniyappan, 2001 (8) SCC 458, the judgments of this Court referred to above have no relevance and there is no initial burden on the part of the complainant to prove that the cheque was issued for discharging a legally enforceable debt in view of the provisions contained in sections 118 and 139 of the Act. The Court has to presume that the cheque had been issued for discharging a debt or liability, which presumption, of course, could be rebutted by the accused by proving to the contra. Mere denial or rebuttal by the accused in the reply notice by the complainant is not enough. The accused had to prove by cogent evidence that there was no debt or liability. In the instant case, the respondent-accused not having discharged his burden, the lower court ought not to have held that the complainant has not discharged his initial burden and as such, the presumption under section 139 of the Act cannot be invoked.

( 5 ) IN Hiten P. Dalai s case (supra) it was held as under: "21. The appellant s submission that the cheques were not dra

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