IMPORTANT POINTS
(1) Presumption under Section 139 of the N.I. Act would arise only when the issue of cheques is admitted by the accused and those cheques were issued towards discharge of legally enforceable debt.
(2) Powers of the High Court in an appeal against the acquittal are limited.

M. Satyanarayana Murthy, J.—The complainant in C.C.No.71 of 2014 on the file of the II Special Magistrate at Hastinapuram, R.R.District, being aggrieved by calendar and judgment dated 31.01.2015 preferred this appeal challenging the acquittal of the respondent/accused, finding him not guilty for the offence punishable under Section 138 of Negotiable Instruments Act (for short “the N.I. Act”).

2. The appellant herein is the complainant and the respondent herein is the accused in C.C.No.71 of 2014 respectively and they will hereinafter be referred as ‘complainant’ and ‘accused’ for the sake of convenience.

3. The complainant R.Chennakesava Rao allegedly lent an amount of Rs.1,00,000/- on 02.05.2011 for the personal necessities and the respondent/accused promised to repay the same with interest at 24 % p.a. Again the accused approached the complainant on 07.09.2011 and requested for advance of Rs.1,00,000/-. Accordingly, the complainant paid an amount of Rs.1,00,000/- on 07.09.2011. Thus, the complainant lent an amount of Rs.2,00,000/- on the promise made by the accused to repay the same at the earliest with interest thereon. Despite several reminders, the accused did not discharge the debt, but issued two cheques i.e. cheque bearing No.478401 dated 05.11.2013 for Rs.1,00,000/- drawn on ICICI, Dilsukhnagar Branch and cheque bearing No.747639 dated 15.11.2013 for Rs.1,00,000/- drawn on HDFC Bank, Saleem Nagar, Malakpet branch towards discharge of debt due to the complainant. The complainant presented those two cheques with the collecting bank i.e. L.B.Nagar Branch for collection of amount covered by cheques on 13.12.2013, but those two cheques were dishonoured with a return memo dated 14.12.2013 with endorsement “funds insufficient”. Thereafter, the complainant got issued a legal notice dated 19.12.2013 to the accused demanding him to pay the amount covered by cheques by registered post with acknowledgement due, but the accused neither discharged the debt nor issued any reply to the notice and the amount covered by the cheques remained unpaid. Hence, he filed complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the N.I. Act.

4. Upon securing the presence of the accused by issuing summons after compliance of necessary formalities, the accused was examined under Section 251 of Cr.P.C. explaining the accusations made against him, but he pleaded not guilty and claimed to be tried.

5. During trial, the complainant himself was examined as P.W.1 and marked Exs.P.1 to P.9.

6. After closure of the complainant’s evidence, the accused was examined under Section 313 of Cr.P.C. explaining incriminating material appeared against him, he denied the same and reported no defence.

7. Upon hearing arguments of both the counsel, the trial Court dismissed the complaint on two grounds, viz.

(1) The complainant failed to prove compliance of clause (b) of proviso to Section 138 of the N.I. Act.

(2) The complainant failed to establish the issue of two cheques by the accused towards discharge of legally enforceable debt or liability and acquitted the accused for the offence punishable under Section 138 of Negotiable Instruments Act.

8. Aggrieved by the acquittal of the accused dismissing the complaint, the present appeal is preferred under Section 378 (4) of Cr.P.C. on various grounds.

9. The main contentions raised before this Court are that the complainant sent legal notice dated 19.12.2013 and receipt of the same was acknowledged under Ex.P.9, but the trial Court on erroneous appreciation of the evidence concluded that the complainant failed to comply with the mandatory requirement of clause (b) of proviso to Section 138 of N.I. Act and the same is contrary to the law declared in “Satish Jayantilal Shah v. Pankaj Mashruwala, 1996 Cri.L.J. 3099”

10. It is also contended that when the accused did not deny the service of notice in the examination under Section 251 of Cr.P.C. and also in examination under Section 3