ORDER :

This Criminal Appeal is filed on behalf of the appellant, under Section 378(4) of the Code of Criminal Procedure, 1972 (for short, ‘the Cr.P.C’), against the acquittal of the accused/second respondent questioning the judgment, dated 13.06.2007 in C.C. No.690 of 2006 on the file of the Court of II Additional Chief Metropolitan Magistrate, Visakhapatnam (for short, ‘the learned Magistrate’). The present appellant is the complainant on the allegations of dishonour of cheque before the trial Court.

2. The case of the prosecution, in brief, before the trial Court, as per the complaint filed by the complainant under Section 190 Cr.P.C., is as follows :

The complainant and the accused are known to each other since long time. Accused took a hand loan of Rs.70,000/- from the complainant to incur her family expenses prior to 10.12.2005 and she issued a cheque for Rs.70,000/- in favour of the complainant towards payment of the debt amount. The cheque was dated 10.12.2005 drawn on State Bank of India, Maharanipeta Branch, Visakhapatnam. The complainant presented the cheque thrice on 10.12.2005, 18.02.2006 and 27.04.2006. In all those occasions, it was returned as ‘funds insufficient’ and lastly ‘payment stopped by drawer’. Therefore, the complainant got issued a notice on 29.04.2006 demanding the cheque amount and the accused got issued a reply with false allegations. Hence, the complaint.

3. The Court below took the case on file under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). On appearance of the accused before the Court below, copies of case documents were furnished as required and further the accused was examined under Section 251 Cr.P.C. for which she denied the allegations, pleaded not guilty and claimed to be tried.

4. During course of trial on behalf of the complainant PW.1 was examined and Exs.P-1 to P-7 were marked. After closure of the evidence of the complainant, accused was examined under Section 313 Cr.P.C. with regard to incriminating circumstances against her in the evidence and she denied the same. She examined herself as DW.1 and one Ch. Durga Rao as DW.2 and got marked Exs.D-1 to D-7.

5. The learned Magistrate, on hearing both sides and on considering the oral as well as documentary evidence on record, found the accused not guilty of the offence under Section 138 of the NI Act and acquitted her under Section 255(1) Cr.P.C.

6. Aggrieved by the same, the unsuccessful complainant in C.C. No.690 of 2006 before the Court below filed the present Appeal challenging the judgment of the trial Court.

7. Now, in deciding this Appeal, against the acquittal, the points that arise for consideration are :

(1) Whether the complainant was able to prove before the learned Magistrate that Ex.P-1-cheque was issued to discharge the legally enforceable debt that was existing between the complainant and the accused and whether such complainant proved the offence alleged for the offence under Section 138 of the NI Act against the accused beyond reasonable doubt?

(2) Whether the judgment of acquittal in C.C. No.690 of 2006, dated 13.06.2007, by the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam is sustainable under law and facts in the circumstances?

8. Learned counsel appearing for the appellant would contend that the Court below passed a lengthy judgment without proper reasons. There was no dispute about the signature of the accused on the cheque and in such a case it was for the accused to explain as to how she issued a cheque. The accused did not at all explain and there was a presumption under Section 118 of the NI Act that it was supported by consideration. The trial Court did not look into the deposition of accused properly, where she admitted that she took hand loan several times from the wife of the complainant and admitted the issuance of a cheque and promissory note. The trial Court did not consider all these aspects erroneously. The trial Court instead of saying that the accused i