( 1 ) THE appellant has challenged the judgment and order dated 12. 01. 2009 in criminal Appeal No. 48 of 2008 whereby learned Additional Sessions Judge set aside the judgment and order dated 09. 01. 2008 of learned Chief Judicial Magistrate. Ahmedabad in Criminal Case No. 3243 of 2004 and acquitted the respondent of the offence under Section 138 of the Negotiable instruments Act, 1881 (for short, "the Act')for which she was convicted by the trial court.

( 2 ) THE indisputable facts emerging from the record are that the complainant, present appellant, and the accused person had business relations in which pharmaceutical raw materials was supplied by the appellant between 11. 6. 2003 and 23. 01. 2004 and a cheque dated 03. 02. 2004 was given by the respondent which was dishonoured by the bank for insufficient fund, on 06. 02. 2004. Therefore, notice under Section 138 of the act was issued and served; and upon noncompliance with the demand, the complaint was lodged. The defence of the accused in reply to the statutory notice consisted of denial of issuance of the cheque and misuse of the cheque, besides the contention that the goods sold and supplied to her firm was returned and that there were other disputes. During the course of trial, even as no witness was examined in defence, the accused relied upon the delivery challan under which the goods was sent back through a transporter to the complainant. The accused also relied upon the statements made in cross-examination of the complainant and put up the defence that the complainant had failed to prove enforceable debt against her. The trial Court, relying upon the oral and documentary evidence produced by the complainant, came to the conclusion that the cheque was issued against the invoice for the supply of goods worth Rs. 1,48,668/- to which other amounts debited to her account were added and the total amount of the cheque of Rs. 2,08,074/- was proved to be due by the invoice, debit notes and other charges. Thus, the trial court recorded conviction and sentenced the respondent to two years of simple imprisonment and fine of Rs. 25,000/-, in default, to two months of simple imprisonment.

( 3 ) CARRYING the above judgment of the trial Court in appeal, the respondent, inter alia, contended that no amount was outstanding against her since the goods sold to her by the invoice, as aforesaid, was returned and the cheque which was given as advance towards settlement of account was misused. The appellate Court adopted the view that the complainant had totally failed in discharging the initial burden of proving that there was legally enforceable debt, by producing cogent proof, such as books of account, account note book, income-tax report, income-tax return, audit report, audit books etc. and, therefore, in absence of proof of legally enforceable debt on the part of the complainant, the accused could not be asked to discharge her burden of rebutting the presumptions arising under section 139 of the Act. The appellate Court noted that the complainant had not examined any independent witness in support of his case and it relied upon judgment of Andhra Pradesh High Court in case of Nagisetty Nagaiah v. State of a. P. [2004 Cr. LJ. 4107]. The approach of the appellate Court is practically summarised in para 21 of the impugned judgment which reads as under:

"21. Here in this case, though the accused has not complied with the demands of the statutory notice of the complainant, the complainant has also miserably failed to produce cogent proof such as books of account, income-tax return/report, audit report etc. to prove that there was legally enforceable debt by the accused. It is also clear that the complainant has himself failed to discharged the initial burden that there was legally enforceable debt. Therefore, the complainant, respondent No. 1 herein, cannot seek the plea and take advantage merely on return of the cheque unpaid on the ground of insufficient funds. Even ot