The burden of proof on the accused to rebut the presumption under Section 139 of the Negotiable Instruments Act and the need for the complainant to prove due execution of the cheque to shift the burden on the accused to prove his defense.

Complainant is the appellant. His complaint against the 1st respondent, hereinafter referred to as the accused, for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, the N.I.Act, after trial, ended in acquittal of the accused. Aggrieved by the judgment of acquittal, questioning its legality and correctness, he has preferred this appeal.

2. The case of the complainant is that the accused issued Ext.P1 cheque for a sum of Rs.3,50,000/-towards discharge of a loan for the above sum, availed one month earlier, promising its encashment on presentation before the bank in due course. The cheque presented, was however, dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating the dishonour of the cheque and demanding the sum covered by the instrument was responded with Ext.P6 reply notice, raising untenable contentions. The complainant thereupon launched prosecution against the accused for the offence punishable under Section 138 of the N.I.Act.

3. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined himself as PW1 and got marked Exts.P1 to P6 to prove his case. The accused in his reply notice, Ext.P6, had contended that he had no transaction with the complainant but only with his son to whom he had given two cheques as security. He had further contended in the reply that one of the two cheques had been misused by the complainant in collusion with his son to set up a false case against him. During the cross examination of the complainant as PW1, the version presented in the reply notice was set up as a defence of the accused. When questioned under Section 313 of the Cr.P.C., he maintained his innocence. No defence evidence was adduced.

4. The learned Magistrate, after appreciating the materials produced, found the case of the complainant that he had a loan transaction with the accused and Ext.P1 cheque was issued towards discharge of the liability under that loan was not established, and to the contrary, the defence version that Ext.P1 cheque had been given to the son of the complainant as security in respect of a loan transaction with him was more probable. In that view of the matter, the accused was found not guilty and acquitted of the indictment.

5. I heard the counsel of both sides. The learned counsel for the complainant assailed the judgment of acquittal submitting that the learned Magistrate had misappreciated the facts and evidence tendered in the case. The accused had disputed the liability under Ext.P1 cheque, according to the counsel, set up a defence that he had no loan transaction with the complainant and the cheque had been issued as a security in respect of a loan transaction with the son of the complainant. The counsel further submitted that in Ext.P6 reply notice, the accused had also disputed that on the date of loan transaction alleged by the complainant, that is, 10.6.1997, he was on a different place. It is the submission of the learned counsel that there was no denial of execution of the Ext.P1 cheque by the accused but only a dispute as to having had a loan transaction with the complainant and issue of Ext.P1 cheque to him towards discharge of a debt or liability. When execution of Ext.P1 cheque was not denied, but only the liability thereunder, and the cheque had been dishonoured due to insufficiency of funds in the account of the accused, the complainant, the holder of the cheque is entitled to bank upon the presumption under Section 139 of the N.I.Act unless the contrary is proved that he had received the cheque towards discharge in whole or in part of any debt or other liability of the drawer of that instrument. Complainant, who was examined as PW1 had sworn to his case set up in that complaint with the accused other than raising a false defence disputing the loan transaction with the son let in counter evidence to rebut the presumption under Sec