P.D. RAJAN, J.

1. Leave granted. Appellant challenges the judgment of acquittal in Crl. A. 633 of 2007 of Additional Sessions Judge, Fast Track II (Ad hoc), Thrissur for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as NI Act). The appellant is the complainant in ST 279/2006 of Judicial First Class Magistrate, Irinjalakuda, and the 1st respondent is the accused, he was convicted under Section 138 of NI Act and sentenced to imprisonment for three months and to pay compensation of Rs. 15 lakhs under Section 357(3) Cr.P.C. The facts considered for the indictment were that in May, 2004 first respondent approached the appellant and borrowed a sum of Rs. 15 lakhs and in September, 2004 first respondent and his wife borrowed another Rs. 15 lakhs (total Rs. 30 lakhs) from the appellant. When appellant demanded the due amount of Rs. 30 lakhs, first respondent gave a cheque dated 31/03/2005 drawn on SBI, Thriprayar branch for Rs. 15 lakhs and his wife issued another cheque for Rs. 15 lakhs to pay off the debt. When one cheque was presented for encashment through Irinjalakuda Town Co-operative Bank, Kattingahira branch, it was dishonoured for the reason of funds insufficient. Appellant gave a notice in writing to the first respondent on 21/06/2005 and demanded the due amount. There was no repayment, instead of that, he sent a reply notice denying the claim of the appellant. On the ground of non payment, appellant filed the above complaint in the Trial Court.

2. In the Trial Court, appellant was examined as PW 1 and his documents were marked as Ext. P1 to P11. The first respondent was examined as DW 1 and SI of Police, Mattannoor was examined as DW 2. The documentary evidence Ext. D1 to D27 were marked in support of the defence evidence. Trial Court after analysing the oral and documentary evidence, convicted the first respondent and sentenced there under. Against that, 1st respondent preferred the Crl. Appeal 633 of 2007 and the Additional Sessions Court acquitted the accused. Hence the de facto complainant preferred this appeal.

3. Learned counsel appearing for the appellant contended that the cheque was dishonoured for the reason of funds insufficient and the presumption under Section 118 and 139 of the NI Act is available in this case and first Appellate Court misconstrued the evidence, took a wrong decision. The existence of legally enforceable debt was proved, the appellant's submission to draw a presumption under Section 139 is based upon evidence. Without considering the statutory liability, first respondent was acquitted which needs interference.

4. According to Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an account maintained by him with a bank for payment of any amount of money to another person from out of that account, for the discharge in whole or in part of any debt or liability, is returned by the bank, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. This deemed provision is subject to the statutory condition that the cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a demand for payment of such amount by giving a notice in writing to the drawer of the cheque and non payment of due amount after receipt of notice by the drawer of the cheque.

5. The submission of the appellant was that the cheque was issued in discharge of a debt. For substantiating the contention of legally enforceable debt, PW 1 was examined in the Trial Court. The oral evidence of PW 1 shows that first respondent borrowed a sum of Rs. 15 lakhs in May 2004 and his wif