Heard the learned counsel for the appellant and the learned counsel for the respondent.

2. The appellant was the complainant before the Trial Court, who had alleged an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act' for brevity).

3. It is the case of the appellant that the appellant and the respondent were good friends. Since the respondent was in need of money, he had raised a hand loan of Rs.2,00,000/- from the appellant, which was lent under two installments dated 25.06.2003 and 26.10.2003. The same was to be repaid on or before 1.10.2004. The same not having been paid on or before that date, a demand was made and therefore, the respondent had executed an agreement, whereby he had furnished his house as security for repayment of the loan amount and had granted permission to the appellant to take action towards recovery of the hand loan, in case the accused failed to repay the sum. Since there was default in repayment and on a demand being made, the respondent is said to have issued a cheque bearing No.956504 for a sum of Rs.2,00,000/- drawn on Syndicate Bank, Bijapur. When the same was presented for payment on 8.12.2004, it was returned with an endorsement that the drawer's signature differed from his specimen filed with the Bank and further, that there was insufficient funds in the account of the respondent. It is in that background that a notice of dishonour was issued to the respondent, calling upon him to pay the amount within 30 days. As there was failure to comply with the demand, the complaint was lodged. Cognizance of the offence was taken and after recording the sworn statement of the complainant, summons was issued to the respondent. The respondent appeared through counsel and contested the matter. The complainant having tendered evidence by way of an affidavit and having marked documents at Exhibits P1 to P6 and having recorded the statement of the respondent, the respondent having tendered evidence and also having examined another witness in his favour, had got marked Exhibit D1. The court below, after having heard both sides, framed the following points for consideration:

The complaint having been contested, was dismissed. Hence the present appeal is filed.

"1. Whether the complainant proves that, accused has issued a cheque under Ex.P.1?

2. Whether the complainant proves that, accused had issued a cheque under Ex.P.1 towards discharge of his lawful liability in respect of hand loan availed by him from the complainant?

3. Whether the complainant proves that, accused had issued a cheque at Ex.P.1 without maintaining sufficient balance in his account and thereby committed the alleged offence?

4. What order?"

The trial court has held all the points in the negative and has dismissed the complaint. It is that which is under challenge in the present appeal.

4. The learned counsel for the appellant would submit that the court below has failed to appreciate the evidence of PW-1, though the respondent has admitted the cheque. It is only the claim that the signature on the cheque is not his and therefore, the court below having accepted that contention, would deny the case of the appellant. The learned counsel would submit that it is in the face of the admission that the cheque was issued in respect of the account held by the respondent. The presumption under Section 139 of the NI Act would be in favour of the appellant and the respondent not having rebutted the same, merely contending that since the Bank had endorsed that the signature was not that of the respondent, it was for the appellant to establish that the signature was indeed that of the respondent and the court below also having accepted such an argument, leads to a misinterpretation of the law and to the disadvantage of the appellant. The court below also having carried out an exercise of comparing the signature on the cheque with the signature on the vakalatnama on the claim o