( 1 ) THIS appeal is filed under Sec. 378 (4) of the Cr. RC. by the appellant-complainant to set aside the order of dismissal dated 14-3-2002 passed by the Additional Civil Judge, Mangalore, D. K. by acquitting the respondent for which he has beencharge sheeted.

( 2 ) ASSAILING the same the appellant-complainant has come up with this appeal mainly on the ground that the judgment and order passed by the Court below is contrary to the provisions of Ss. 138, 139, 148 and 118 of negotiable Instruments Act (hereinafter referred to as 'the Act' ). The finding recorded by the trial Court is that the liability of the accused is not proved and appellant-complainant has failed to prove the issuance of the cheque towards the existing legally recoverable debt. But the Court below has overlooked and ignored the presumption prevailing in favour of the holder in due course. In view of the provisions of Sec. 139 of the Act, the presumption in favour of the complainant who was the holder of the cheque that the cheque received was of the nature referred in Sec. 138 of the Act for discharge in whole or in part of any debt to any other liability and the accused was required to dislodge that presumption. Neither the respondent has given any reply to the legal notice nor rebutted the evidence of the complainant. Therefore, there is a failure on the part of the trial Court. Once the cheque has been issued and signature has been admitted, then automatically the burden lies on the respondent-accused to prove his case. There is a specific finding that the respondent has borrowed the money and issued cheques. It cannot be said that the complaint is lacking in expressing that the cheques have been issued for discharge of the existing debt. Hence,this appeal.

( 3 ) HEARD the arguments of learned counsel for the appellant and learned counsel for the respondent.

( 4 ) DURING the course of arguments learned counsel for the appellant submitted that the respondent herein has issued three cheques, out of three cheques one cheque was dishonoured when presented, as time barred. The two cheques issued were presented for encashment on 2-8-1994, but were returned on 4-8-1994 dishonoured with an endorsement "insufficiency of funds". Therefore, after issuing the demand notice to the respondent, a complaint came to be filed. But the respondent herein neither sent any reply to the legal notice nor filed any objection before the trial court or stepped into the witness box to adduce rebuttal evidence. Therefore, the dismissal of the complaint by the trial Court is on a flimsy reason that the averments of the complaint are not in accordance with the evidence placed on record by the appellant-complainant. Therefore, when once issuance of cheques and the signature of the respondent in the said cheques were admitted, automatically the burden lies on the respondent accused to rebut the presumption available in favour of complainant. The entire burden lies on any variation in the pleadings and evidence is not a ground to disbelieve the evidence of the appellant-complainant. Therefore, the burden will automatically shift on the respondent to prove under what circumstances the two cheques are said to have been issued. Therefore, the finding recorded and the point raised by the trial Court in dismissing the complaint is totally incorrect and illegal. In criminal cases the prosecution is expected to prove the charges levelled against the accused beyond reasonable doubt. But under N. I. Act, in view of presumption available in favour of complainant, if the complainant proves his case by placing prima facie evidence that the cheques have been issued by the respondent accused for legally recoverable debt, the presumption is to be drawn in favour of the complainant against the respondent. In the instant case since the respondent has not taken any pain to adduce rebuttal evidence. Therefore, the finding recorded by the trial Court on the ground that the averment of the complaint vari

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