JUDGMENT :

C. PRAVEEN KUMAR, J.

1. The appellant/complainant filed the present appeal under Section 378(4) of Cr.P.C., aggrieved by the judgment dated 11.5.2009 passed in CC No. 1360 of 2005 on the file of the II Additional Judicial Magistrate of First Class, Nellore. For the sake of convenience, the parties will hereinafter be referred to as arrayed in CC.

2. The facts in issue are as under:

The appellant/complainant filed a private complaint against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). The averments in the complaint would show that the accused who was a Petrol Bunk at Maddilamadugu Village, Rapur Mandal, borrowed a sum of Rs. 1,20,000/- for his business purpose, and in discharge of said debt, the accused is said to have issued a cheque Bearing No. 998851 for Rs. 1,20,000/-, dated 8.11.2005 drawn on Andhra Bank, Sullurpet in favour of the complainant. The said cheque when presented for collection on 13.11.2005 was returned with an endorsement 'insufficient funds'. Thereafter, the complainant got issued a legal notice on 24.11.2005 demanding the accused to pay the amount covered under the cheque. In spite of service of notice, the accused failed to pay any amount. As the accused failed to pay any amount, the present complaint came to be filed.

3. After recording the sworn statement of the complainant the case was taken on file and summons were issued to the accused. On appearance, the accused was examined under Section 251 Cr.P.C., wherein he denied the accusation levelled against him and claimed to be tried.

4. In support of his case, the appellant examined PWs.1 and 2 and got marked Exs.P1 to P5. No oral or documentary evidence was adduced on behalf of the accused.

5. After analysing the evidence available on record, the trial Court acquitted the accused holding that the evidence available on record does not disclose that the cheque was issued in discharge of any legally enforceable debt. Challenging the same, the present appeal has been filed.

6. Now the point that arises for consideration is whether the cheque bearing No. 998851 for Rs. 1,20,000/- was issued in discharge of a legally enforceable debt or any other liability?

7. Learned Counsel for the appellant mainly submits that since the signature on the cheque is not in dispute and as the accused failed to rebut the evidence by leading any evidence, it has to be presumed that the said cheque was issued in discharge of legally enforceable debt.

8. Per contra, learned Counsel for the accused would submit that the complainant failed to establish that the said cheque was issued in discharge of any debt or liability in view of inconsistent version of PWs.1 and 2. It is further submitted that the accused could rebut the presumption by eliciting necessary answers from the cross-examination of PWs. 1 and 2 itself and that an adverse inference need not be drawn due to non-examination of any of the witnesses from his side.

9. In order to prove the rival contentions, it would be useful to refer to the evidence of PWs.1 and 2. PW1 in his evidence reiterated the averments made in the complaint, mainly with regard to borrowing an amount of Rs. 1,20,000/- from the accused and issuance of cheque Ex.P1, which presented for collection was returned due to insufficient funds. In the cross-examination, PW1 admitted that the accused did not execute any document in discharge of his liability except Ex.P1. The cross-examination of PW1 would also disclose that he was running Hero Honda Showroom at Venkatagiri, of which, himself and his wife are the owners. He further admits that the accounts maintained by him in their showroom indicate the payments of money to the accused. To a suggestion, he denied non-payment of any amount to the accused and that he did not mention the same in the accounts. He further admitted that he has already submitted the income tax returns for the year 2005 to the income tax authorities, and as suc