Mrs. R. Banumathi, J.—Complainant in C.C. No. 262 pf 1993 on the file of Judicial Magistrate Court, Arani is the appellant. By the Judgment (dated 15- 10-1996), the Judicial Magistrate, Arani has convicted the respondent/accused under Section 138 N .1. Act and sentencing him to undergo rigorous imprisonment for three years and also imposing fine of Rs: 5000/-. Aggrieved over the conviction, the accused has preferred appeal before the District Court, Thiruvannamalai in C.A. No. 54 of 1996. By the Judgment (dated 22-8-1997) the Additional Sessions Judge has reversed the verdict of conviction and acquitted the respondent/accused. As against the Order of acquittal, the complainant has preferred this Appeal.

2. Facts which led to the present Appeal could briefly be stated thus:

Case of complainant is that the accused is bound to pay Rs. 4,65,000/- to the complainant, for which the accused had issued a cheque bearing No. CQ 132675 dated 15-5-1993 drawn on the Karur Vysya Bank Limited, Arani. The accused requested the complainant to present the cheque after four months. Accordingly, the complainant presented the cheque for collection through his banker Lakshmi Vilas Bank Limited on 11-11-1993. The cheque was returned with endorsement “Insufficiency of Funds”. The complainant had issued statutory Notice (dated 16-11-1993) informing about the return of the Cheque and calling upon the accused to pay the amount of the dis-honoured Cheque. The accused received the said notice and sent reply on 26-11-1993 containing false allegations. Alleging that the accused had committed the offence under Section 138 N .1. Act, the complainant has filed the complaint.

3. Resisting the complainant’s case, the defence is that the accused issued the cheque only as a guarantee and that the penal provision of Section 138 N.I. Act is not attracted. Upon consideration of the evidence, learned Trial Magistrate rejected the defence version that Ex.P-1 cheque was issued only as a guarantee. Pointing out that the accused had executed as many as nine promissory notes between 15-5-1993 and 24-5-1993 learned Trial Magistrate found that an amount of Rs. 4,65,000/- is payable by the accused for which he has issued Ex. P.1 cheque, which was dishonoured. Finding that the penal provision of Section 138, N .1. Act is attracted, learned Trial Magistrate convicted the accused under Section 138 N.I. Act.

4. Learned Additional Sessions Judge, Thiruvannamalai reversed the findings of the Trial .Court on the ground that no document is produced by the complainant/financier to prove that the accused was bound to pay Rs. 3.50,000/-prior to 15-5-1993 and that a total amount of Rs. 4,65,000/- is payable for which Ex.P .1 cheque was issued. Rejecting the complainant’s plea that the Accused had executed nine promissory notes, learned Additional Sessions Judge held that Ex. P.1 cheque was taken by the Complainant/financier only as a guarantee. After referring to the provisions of Section 138 N .I. Act and the nature of presumption to be raised under Section 138 N .1. Act, the lower appellate Court found that in the absence of any proof of Debt or legally enforceable liability, no criminal intention could be attributed to the accused and on those findings, allowed the Appeal in C.A. No. 54 of 1996, setting aside the conviction of the Respondent/ Accused.

5. Aggrieved over the Order of acquittal by the lower appellate Court, the complainant/Sri Murugan Financier has preferred this appeal. Learned counsel for the appellant contended that the lower appellate Court erred in finding that the cheque was issued only as a guarantee, which stand was not taken by the accused while he issued the reply notice (Ex.P.5 dated 26- 11-1993) and the lower appellate Court erred in accepting the same. Finding of the lower appellate Court is further assailed by the learned counsel for the appellant contending that the learned Additional Sessions Judge: has attached much importance to the production