JUDGMENT :

U. Durga Prasad Rao, J.

1. This criminal appeal is filed by the complainant aggrieved by the judgment dated 7.8.2006 in C.C. No. 2070 of 2003 passed by the learned II Metropolitan Magistrate, Cyberabad, Ranga Reddy District, dismissing the complaint filed by the complainant under Section 138 of N.I. Act.

2. This appeal is filed in the background of the following factual matrix:

(a) The complainant's case is that the father of the complainant has been working as a Clerk in Andhra Bank Employees Co-operative Bank Limited and accused also works in the same bank and due to that acquaintance, the accused requested for advancing a sum of Rs. 1,30,000/- on 28.2.2001 and the complainant advanced said amount, for which the accused executed two promissory notes i.e., one for Rs. 90,000/- and another for Rs. 40,000/- and on persuasion of the complainant, the accused issued a cheque for Rs. 50,000/- on 1.7.2003, drawn on ABE Co-operative Bank, Rajahmundry, towards part payment of the loan amount. When the complainant deposited the cheque in his bank, the same was returned with the endorsement 'funds insufficient'. The complainant issued a legal notice to accused, but he intentionally avoided receiving the same. Hence, the complaint.

(b) The complaint was taken on file and during trial, the complainant was examined as P.W. 1 and his documents were marked as Exs. P1 to P10. The accused was examined as D.W. 1 and his documents were marked as Exs. D1 and D2.

(c) The defence of accused is that he never borrowed Rs. 1,30,000/- from complainant nor executed any pro-notes in his favour and issued cheque for Rs. 50,000/- in part payment of the said amount. His case is that in the year 2003, while he was working at Rajahmundry as Clerk in Andhra Bank Employees Co-operative Bank Limited, the father of P.W. 1 brought the police to his office and on his threat, he signed on blank promissory notes and also issued blank cheque to him. Thus, the accused denied to have issued Ex. P1 cheque, but, admitted his signature on Ex. P1 cheque.

(d) Basing on the above defence, the accused argued before the lower Court that there was no legally enforceable debt within the ambit of Section 138 of N.I. Act and therefore, the criminal proceedings are not maintainable. He further argued that the suit filed by P.W. 1 for recovery of the amounts including the cheque amount was dismissed and on that count also, the criminal case is not maintainable. He further argued that the complainant and his family members are money lenders and when there is no legally recoverable debt, criminal proceedings cannot be maintained.

(e) Per contra, the complainant urged before the Trial Court that though the Civil Court gave a finding that consideration was passed to the accused, however, dismissed the suit on the technical ground that the money lending license was not produced before the Court and therefore, the dismissal of the civil suit has no bearing in the criminal proceedings. He further argued that in the instant case, the accused admits his signature on Ex. P1 cheque and also on Exs. P3 and P4 promissory notes and his plea was that they were forcibly obtained by the father of P.W. 1 and therefore, the presumption under Section 139 of N.I. Act would squarely follow in which case, the burden would rest on the accused to dispel the presumption, but, he failed to rebut and therefore, he can be convicted.

(f) A perusal of the judgment of the Trial Court would show that it observed that as per Ex. P10, the complainant obtained money lending license from M.R.O., Saroornagar, on 28.2.2003. However, the two pro-notes covered by Exs. P3 and P4 were dated 28.2.2001 i.e., much prior to Ex. P10 license. The Ex. P1 cheque was no doubt issued on 1.7.2003 i.e., subsequent to the money lending license. The Trial Court observed that the cheque was issued in connection with the pro-note debt and therefore, technically speaking, by the date of two pro-notes, the complainant was not holding valid