The burden of proof lies on the person who issues the cheque to prove that it was not issued for any debt or other liability.

Heard both sides.

2. The respondent was acquitted by learned Judicial Magistrate, First Class, Nanded from the offence punishable under Section 138 of the Negotiable Instruments Act. Aggrieved by the said order, present appeal is preferred by the original complainant. Complainant's case in short is as under :

3. That he and respondent had a long standing friendship for a period of more than 10 years. The respondent is proprietor of gold shop. On 20/10/1999, the appellant approached the respondent for purchase of gold. At that time, he advanced an amount of Rs. 40,000/-to the respondent. The respondent promised him to hand over the gold on or before 10/11/1999 but could not fulfill the promise. Ultimately, on 10/11/1999, when the appellant approached the respondent, he passed the cheque for Rs. 40,000/-. Thereafter, the appellant presented the cheque to the bank. The same was dishonoured, therefore, the appellant again approached the respondent, who told the appellant to again put the cheque for encashment. In these circumstances, appellant again presented the cheque on 6/1/2000. The same however, was dishonored by the bank for the reasons "insufficient funds", therefore, within the prescribed period, the notice was issued, same was served and within prescribed period, complaint came to be filed.

4. Before learned J.M.F.C. the appellant has examined himself. The learned trial Court however, disbelieved his case on the ground that counter foil of the cheque filed by the complainant himself shows the date of issuance of cheque as 8/3/1996 while according to the complainant himself, the cheque was issued on 3/12/1999. However, the learned trial Court disbelieved the case on the ground that if as per the appellant's request the respondent was unable to supply gold on 10/11/1999, there was no occasion to issue cheque on 8/3/1996. The next of the reasons given by the learned trial Court are that the banker is not examined and the handwriting on the counter foil as well as on the cheque are of the complainant. In these circumstances, learned trial Court observed that the presumption that the cheque was passed for legally enforceable liability has been rebutted in the present case and in these circumstances, the respondent came to be acquitted.

5. Mr. M.S. Nilwant holding for Mr.S.B. Talekar, Advocate submits that the counterfoil has nothing to do with the passing of the cheque. Further the date as shown in the counterfoil is not relevant for the purpose of finding date over the cheque according to him. The learned trial Court has unnecessarily taken wrong view of the matter and on technical grounds acquitted the respondent.

6. On the other hand, Mr. P.G. Godhamgaonkar, the learned counsel for the respondent no.2 i.e. original accused submitted that the very fact that only one counterfoil of the two different cheques have been issued by the respondent are found in the custody of the complainant and produced by him, would itself go to show that the story of advancing money for the purpose of purchase of gold is false one. He further submits that the very date over the counterfoil in the handwriting of the complainant himself would show that the cheque was passed by the respondent no.2 accused on 8/3/1996, however, the complainant as per his convenience put the date, amount and other necessary details in the cheque without there being any real transaction between the parties. According to him, the defense of the accused no.2 respondent that the cheques were issued only to assist the appellant financially is thus probabalised. In these circumstances, presumption has been rebutted in the present case. No interference be made in the ultimate decision of the learned trial Court. On the basis of these submissions, following points arose for my consideration :

[I] Whether the presumption as provided by Section 139 of Negotiable Instruments Act that the holder of the cheque received the cheque for the discharge of any debt or other lia