IMPORTANT POINT
Once the Cheque is issued by the drawer there would be a presumption under Section 139 of Negotiable Instruments Act and stoppage of payment will not preclude an action under Section 138 of the Act.

JUDGMENT

G. Sasidharan, J. - This is an appeal filed by the complainant in C.C. No. 9 of 1993 on the file of the Judicial Magistrate of the First Class, Sulthan Bathery, from the judgment by which the accused in the above case was acquitted. The allegation against the accused, who is respondent in this appeal was that he committed the offence punishable under Section 138 of the Negotiable Instruments Act. In the complaint filed by the appellant in the Trial Court, the allegation was that the respondent borrowed an amount of Rs. 37,000/- from the appellant on 5-10-1992 agreeing to pay the amount back within one month. Even after one month, the amount remained unpaid and hence the appellant made a demand to the respondent to pay back the amount. Then the respondent issued a cheque for Rs. 32,000/- with the date 25-11-1992 drawn on Nedungadi Bank, Vadakara Branch and agreed to pay the balance amount of Rs. 5,000/- within one week. The statement in the complaint is that the respondent approched the appellant after one week and told him that he was not in a position to pay the balance amount of Rs.5,000/- in cash and issued another cheque for Rs. 5,000/-. When the two cheques were presented in South Malabar Gramin Bank, Sulthan Bathery, for collection of the amount, the cheques were dishonoured by stating that payment has been stopped by the respondent. On enquiry made by the appellant he came to know that there was no sufficient amount in the account of the respondent to honour the cheques. Thereafter, the appellant issued notice to the respondent informing him of the dishonour of the cheques and also demanding payment of the amount covered by the cheques.

2. In the Trial court, the respondent raised the contention that the two cheques issued by him to the appellant were not supported by consideration. According to him, the allegation by the appellant that the two cheques -were issued towards repayment of the amount borrowed from the appellant is not at all correct. What the respondent would say is that there was an agreement that the appellant would supply timber and on the basis of that agreement an amount of Rs. 25,000/- was paid in cash and the two cheques were issued for Rs. 37,000/- towards consideration of the timber that was agreed to be supplied by the appellant. According to the respondent, the appellant did not supply timber as agreed by him and hence the cheques were not supported by' consideration.

3. Evidence was taken in the Trial Court. The appellant gave evidence in the Trial Court as PW 1. PW 2 is the Manager of Vadakara Branch of Nedungadi Bank. Exts. PI and P2 are the cheques issued by the respondent in favour of the appellant. Exts. P3 and P4 are the memos issued from the Bank stating that Exts. PI and P2 cheques were dishonoured since the payment was stopped by the drawer, the respondent. Ext. P6 is copy of the notice sent by the appellant to the respondent informing the dishonour of the cheques, and demanding payment of the amount covered by the cheques. On an appreciation of the evidence adduced, the Trial Court came to the conclusion that the respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. On the basis of the above finding, the respondent was acquitted under Section 255(1) of the Code of Criminal Procedure. Aggrieved by the above order of acquittal, this appeal is filed by the appellant praying that the order of acquittal may be set aside and the respondent may be convicted of the offence punishable under Section 138 of the Negotiable Instruments Act.

4. The argument advanced by the learned Counsel appearing for the appellant is that there is sufficient evidence in this case to prove that the respondent committed the offence punishable under Section 138 of the Negotiable instruments Act. Admittedly, Exts. P1 and P2 cheques were issued by the respondent. When the respondent was questioned under Section 313 of the Code of Criminal Procedure, he admitte