1. This Criminal Appeal arises out of the judgment dated 21-02-2006 passed in CC.No. 69 of 2005 by the Special Judicial Magistrate of First Class (Excise) FAC Judicial Magistrate of First Class, Special Mobile Magistrate Court, West Godavari district.

2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the first respondent and the learned Additional Public Prosecutor representing the State.

3. The appellant filed a complaint against the first respondent under section 138 of the Negotiable Instruments Act alleging that the first respondent borrowed from him an amount of Rs.1,50,000-00 on 25-04-2001 for his family expenses and executed a promissory note in his favour agreeing to repay the same with interest @ 24% per annum. After some time, the matter was settled before the elders and in view of the compromise and in terms thereof the first respondent issued a cheque in favour of the appellant for an amount of Rs.1,50,000-00 on 10-08-2001 towards discharge of the liability and debt due under the promissory note as per the settlement arrived at, for which the parties agreed.

4. The appellant presented the cheque on 05-02-2003 for collection in Andhra Bank, R.R. Pet Eluru and it was returned with endorsement that “the cheque was dishonoured due to insufficient funds” in the account of the first respondent. Thereafter, the appellant issued legal notice dated 25-02-2003 to the first respondent calling upon her to pay the cheque amount and stating therein that on failure by her, he would be constrained to file a complaint against her. The notice was returned to the counsel of the appellant on 05-02-2003 with endorsement that the addressee was continuously absent for ten days. Thereafter, as the first respondent did not pay the cheque amount, the appellant filed the complaint before the learned Magistrate under section 138 of the Negotiable Instruments Act.

5. Before the learned Magistrate, the appellant examined PWs 1 to 4 and marked Exs.P-1 to P-10. Whereas the first respondent-accused did neither offer to be examined himself nor she examined any witness. However, during the course of examination of PW-1, Exs.D-1 to D6 were marked on her behalf.

6. After the conclusion of trial, ultimately the learned Magistrate acquitted the first respondent-accused mainly on the ground that the cheque was presented beyond the period of six months in the drawer bank i.e., after expiry of the period of validity and that the respondent is not liable for prosecution under section 138 of Negotiable Instruments Act.

7. There was no denial by the first respondent about her signatures on Exs.P-1 and P-2. Ex.P1 is the acknowledgment and Ex.P-2 is the cheque. The first respondent however contended that her husband and the appellant were doing business jointly in Prawn culture and some cheques were obtained in connection with the said business and that she did not issue the said cheque in discharge of any amount borrowed from the appellant. Basing on the said contention, the learned Magistrate had drawn presumption in favour of the appellant under section 118 and 139 of the Negotiable Instruments Act and also considering the fact that no evidence was adduced and no material is placed by the appellant to rebut the said presumption, recorded a finding that the cheque impugned was issued in discharge of legally enforceable debt/liability.

8. The crucial point, which stood for consideration before the learned Magistrate as well as in this appeal is that whether the cheque was issued beyond the period of limitation for presentation in drawer’s bank and whether the first respondent is liable for prosecution under section 138 of the Negotiable Instruments Act.

9. The learned counsel appearing for the appellant would submit that PW-1 presented Ex.P2 cheque in the payee’s bank on 05-02-2003, it was honoured for collection to the drawer’s bank, as per the evidence of PW-2 the drawer’s bank received Ex.P2 cheque on