The burden of proof of a legally recoverable debt lies upon the complainant, and the presumption under section 139 of the Act does not extend to the existence of a legally recoverable debt.

1. The appellant was the complainant in C.C.No.2648/2004. He had initiated complaint alleging an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') against respondent-accused.

2. I have heard learned counsel for appellant (hereinafter referred to as 'complainant' and learned counsel for respondent (hereinafter referred to as 'accused').

3. It is alleged in the complaint that accused towards amount due to complainant had issued cheque bearing No.973527 dated 07.09.2004 for a sum of Rs.5,00,000/-drawn on ICICI Bank, Kochi Branch, Emgee Square, Padma Junction, M.G.Road, Ernakulam, Kochi, in favour of complainant. On presentation, cheque was dishonoured for want of funds. The complainant caused legal notice and the same was served on accused on 04.10.2004. There was no response from accused. Therefore, complaint was initiated. The complainant was examined as PW1 and documents filed by her were marked as Ex.P.1 to Ex.P.6. On behalf of accused, one Ramesh was examined as DW1 and accused himself was examined as DW2.

4. The learned trial Judge on appreciation of evidence has held accused has admitted signature on cheque, therefore a presumption is available in favour of complainant under section 139 of the Act. The accused has failed to rebut presumption either from cross-examination of complainant or from evidence adduced through DW1 & DW2. The evidence of DW2 that he had given a signed blank cheque for borrowing a sum of Rs.50,000/- from complainant looks improbable. The learned trial Judge after recording aforestated finding, convicted accused for an offence punishable under section 138 of the Act and sentenced him to pay fine of Rs.5,75,000/-and directed payment of Rs.5,70,000/- as compensation to complainant. Thereafter, accused was before I-appellate court in Criminal Appeal No.170/2006.

5. The learned Judge of I-appellate court on re-appreciation of evidence has reversed the findings of trial court by recording following reasons:-

The presumption available under section 139 of the Act does not extend to existence of legally recoverable debt. In other words, existence of legally recoverable debt has to be proved like any other fact. The burden of proof lies upon complainant. The accused cannot be called upon to prove or adduce negative evidence to prove non-existence of debt. The complainant has failed to prove existence of legally recoverable debt. The averments of complaint do not disclose the date on which money was lent and purpose for which money was lent. It is difficult to believe the evidence of complainant that she had lent a sum of Rs.5,00,000/-to accused, without taking any security. The learned Judge of I- appellate court has accepted evidence of accused that he had borrowed a sum of Rs.50,000/- from complainant in the year 2003 and he had given four signed blank cheques to complainant. The accused had repaid loan of Rs.50,000/- with interest to complainant. However, complainant did not return four signed blank cheques to accused. The complainant had misused one of the cheques to initiate the instant complaint.

5. The learned counsel for appellant would submit that accused had been served with notice under section 138(c) of the Act. At the earliest point of time, accused has not put forth defence theory that he had borrowed a sum of Rs.50,000/-from complainant in the year 2003 and accused had given four signed blank cheques as security towards repayment of loan. After repayment of loan, complainant did not return four signed blank cheques. The learned counsel for appellant would submit that learned trial Judge on proper appreciation of evidence has held accused guilty of an offence punishable under section 138 of the Act. The learned Judge of I-appellate court was not justified in reversing the findings recorded by learned trial Judge.

6. The learned counsel for respondent would submit that failure on the part of accused to cause reply notice would not autom