The burden of proving that a cheque had not been issued for a debt or liability is on the accused, as per Secs. 118 and 139 of the Negotiable Instruments Act.

1. Raghunathan, the appellant herein, aggrieved by the order of acquittal passed by the appellate Court has filed this appeal.

2. The appellant herein filed a private complaint against Selvarajan, accused/ respondent for the offence under Sec. 138 of the Negotiable Instruments Act.

3. The trial Court, after trial convicted the accused and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 6,000.

4. Challenging the same, the respondent filed an appeal before the appellate Court which in turn, allowed the appeal and acquitted the accused. Hence, this appeal.

5. The learned counsel for the appellant, while assailing the said judgment of acquittal, would contend that the appellate Court wrongly acquitted the accused by setting aside the well-reasoned judgment of the trial Court, holding that the complainant did not prove that the cheque was issued towards the liability, and accepted the case of the accused that the said cheque was given as security while there was an oral agreement of sale between the complainant and the accused, without considering the evidence of P.W. 1/complainant proving the said aspect, taking into account, Secs. 118 and 139 of the Negotiable Instruments Act.

6. The learned counsel for the respondent/accused while refuting the above said contention, would justify the reasonings given by the appellate Court for acquitting the accused on the strength of the judgments of the Andhra Pradesh High Court in Uplanche Mallikarjun v. Rat Kanti Vimala, 1997 Crl. L.J. 4237 and in a. Bhoosanrao v. Purushothamdas Pantani, 1998 Crl.L.J. 906.

7. I have carefully considered the submissions of both sides and persued the records.

8. On analysing the materials available on record, I find that the transaction with reference to the oral agreement of sale in respect of the property belonging to the complainant is entirely different from the transaction involving the issuance of the cheque for Rs. 1,25,000 by the accused in favour of the complainant towards the discharge of hand loan obtained from the complainant by the accused.

9. It is the case of P.W. 1 both in the notice-Ex.P.-4 and the complaint that the accused obtained a hand loan of Rs. 1,25,000 and towards the discharge of the said liability he issued a cheque for the said sum on 19.6.1998. In the deposition as well, P.W. 1 would specifically state that the loan was obtained by the accused, and on demand of the said amount, the accused issued a cheque which was ultimately dishonoured.

10. It is also noticed from his cross-examination that he would specifically deny the suggestion made by the accused that the said cheque was received by the complainant towards the advance amount for the agreement of sale. In the light of the said materials, it cannot be said that the complainant has not established the fact that the complainant has not established the fact that the cheque was issued towards the discharge of the liability.

11. In the light of those materials, as contemplated under Secs. 118 and 119 of the Negotiable Instruments Act the respondent - accused ought to have produced materials to show that the cheque was not issued for discharge of hand loan, but the same was issued only towards the advance. In this context, it would be worthwhile to refer to some of the observations made by the appellate Court, which are factually incorrect.

12. It is stated by the appellate Court in paragraph 11 that the notice issued prior to the filing of the complaint, i.e., Ex.P-4 did not contain the particulars about the loan advanced by the complainant to the accused. On the other hand, as noticed above, the same was clearly mentioned both in the notice and the complaint, and was also corroborated in the evidence adduced by P.W. 1 before the Court.

13. Despite this, the appellate Court would come to the conclusion that no amount was parted with by the complainant, and the accused gave the cheque in question only towards the advance even without any