C.R. Sarma, J.

(1) This appeal, under Section 378(i) of the Cr.P.C., 1973 (for short, Cr.P.C.), is directed against the judgment and order, dated 07.01.2008, passed by the learned Judicial Magistrate 1st Class, Sivasagar, in CR Case No. 265/2006 under Section 138 of the Negotiable Instrument Act, 1881 (for short, NI Act), whereby the learned Magistrate, at the conclusion of the trial, acquitted the accused person and set him at liberty.

(2) Aggrieved by the said judgment of acquittal, the complainant, as appellant, has come up with this appeal.

(3) The complainant’s case, may, in brief, be stated as follows:

The accused person i.e. the respondent, on 01.07.2005, took an amount of Rs.5 (five) Lakh as loan from the complainant with assurance to repay the same with an interest of Rs.20,000/- and accordingly, he issued a post dated cheque, dated 15.09.2006, amounting to Rs.5,20,000/- only. In due course, due to failure on the part of the respondent to pay the said amount, the complainant, on 18.09.2006, presented the said cheque with the Kanara Bank, Sivasagar Branch for encashment. But, the cheque was dishonoured due to insufficient fund, for which, the complainant issued a notice to the respondent demanding payment of the cheque amount within 15 (fifteen) days from the date of receipt of the notice. On receipt of the said notice, the accused person, by issuing a reply, denied the complainant’s claim that he had taken the loan from the complainant.

(4) In view of the said denial, the appellant, as complainant, filed a complaint under Section 138 of the NI Act, in which cognizance was taken. The complainant, in order to prove her case, examined 2 (two) witnesses including herself. At the close of the prosecution evidence, the accused person was examined under Section 313 Cr.P.C. He denied the allegations of taking loan of Rs.5 Lakhs from the complainant and issuance of a cheque for Rs.5,20,000/- in her favour. He examined 3 (three) witnesses as defence witness. Considering the evidence, on record, the learned Magistrate framed the following points for determination:

“1. Whether the accused person issued a cheque bearing No. 0411899 of Canara Bank, Sivasagar, amounting to Rs.5,20,000/- (Rupees five lacs twenty thousand only) to the complainant for payment of the debt?

2. Whether the said cheque, issued by the accused, was dishonoured by the Canara Bank for ‘insufficiency of Fund in the account’?

(5) Considering the evidence, on record, the learned Magistrate came to the findings that the complainant failed to prove that she had given an amount of Rs.5 Lakhs to the accused on 01.07.2005 and that the accused had issued the cheque for an amount of Rs.5,20,000/-. With the above findings, the learned Magistrate acquitted the accused person. Hence, this appeal.

(6) I have heard Mr. P.J. Saikia, learnd Counsel, appearing for the appellant and Mr. S. K. Medhi, learned Counsel, appearing for the respondent. I have also perused the evidence, on-record and the impugned judgment and order.

(7) Mr. Saikia, learned Counsel for the appellant, referring to the evidence on record as well as the statement made in the complaint, has submitted that the respondent had taken an amount of Rs.5 Lakhs as loan and issued a blank cheque, which was filled up by the driver of the complainant in presence of the respondent and that the cheque, being tendered with the bank, was dishonoured for want of fund.

(8) Therefore, it is submitted that the respondent, who admitted his signature in the said cheque, is liable to pay the cheque amount. It is also submitted that the petitioner, being the holder of the said cheque, the learned Magistrate committed error by failing to draw presumption under Sections 118(A) and 139 of the NI Act. Further contention raised, on behalf of the appellant, is that the accused has failed to rebut the presumption and as such the learned trial Judge committed error of law by failing to draw presumption against the accused person.