RAM PRASANNA SHARMA, J.

1. This acquittal appeal is preferred under Section 378 (4) of the Code of Criminal Procedure, 1973 against judgment dated 14.07.2014 passed by Judicial Magistrate First Class, Bilaspur (C.G.) in Criminal Case No. 324/2012, wherein the said court acquitted the respondent for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act, 1881").

2. As per case of the prosecution, the appellant/complainant and the respondent were residing in the locality of Rajendra Nagar and were having family relation prior to February, 2012. In the month of January, 2012, the respondent was dire in family financial assistance and a cheque for sum of Rs. 2,00,000/- was given to the respondent by the appellant as loan and for discharging of loan, the respondent drawn a cheque of Rs. 2,00,000/- in favour of the appellant. The respondent thereafter shifted to Sambalpur District of Orrisa State and in spite of several efforts, the amount which had been taken by the respondent as loan, has not been refunded. The appellant produced cheque for clearance, but the same has been dishonoured on 6th September, 2012. The appellant sent legal notice for demand of legal liability on 17th September, 2012 and the same was received by her on 20th September, 2012, but the amount was not repaid that is why a complaint under Section 138 of the Act, 1881 was filed before the trial court. The trial court dismissed the complaint on the ground that the cheque which was issued for security of loan does not come under legally enforceable debt, therefore, provision under Section 138 of the Act, 1881 is not attracted and notice to the respondent is not served on the address of District-Sambalpur (Orissa).

3. Learned counsel for the appellant/complainant submits as under:-

(i) There is presumption against the respondent and the said respondent has not come in the witness box to discharge her burden.

(ii) The cheque was given for security of loan and it is admitted position that the loan has been advanced by the appellant, therefore, finding arrived at by the trial court is not sustainable.

(iii) The respondent has not adduced any evidence in rebuttal of the presumption, therefore, finding arrived at the trial court is liable to be reversed.

4. Learned counsel for the appellant placed reliance in the matter of Rangappa Vs. Mohan, (2010) 11 SCC 441.

5. On the other hand, learned counsel for the respondent submits that the cheque was not drawn for existing debt, therefore, no criminal liability can be fastened on the respondent. He placed reliance in the matter of M/s. Indus Airways Pvt. Ltd. & others Vs. M/s. Magnum Aviation Pvt. Ltd. & another reported in, (2014) 2 Crimes(SC) 105 , Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki & another reported in, 2009 AIR Noc 2327 (BOM.), Jitendra Singh Flora Vs. Ravikant Talwar reported in, (2001) 1 MPLJ 229, Ramkrishna Urban Co-operative Credit Society Ltd., Ahmednagar Vs. Rajendra Bhagchand Warma reported in, 2010 CrLJ(NOC) 670 (BOM.).

6. The contention related to the appropriate interpretation of Section 138 and 139 of the Act, 1881 can be addressed later, but before addressing them, it would be useful to quote the relevant provisions of Section 118 of the Act, 1881 which reads as under:-

118. Presumptions as to negotiable instruments-Until the contrary is proved, the following presumptions shall be made:-

(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.

(b) as to date-that every negotiable instrument bearing a date was made or drawn on such date;

7. The appellant appeared before the trial court as PW-1 and as per version of the appellant, the respondent borrowed a sum of Rs. 2,00,000/- from him and for repayment of the loan amount, she drawn a cheque bearing No. 689211 da