The complainant in C.C. No. 191 of 1996, on the file of the Judicial Magistrate, Ambattur is the appellant. By the order (dated 20-3-1997), the trial Magistrate has acquitted the respondent/accused of the offence under Section 138 Negotiable Instruments Act (in short, the N.I. Act). Aggrieved over the order of acquittal, the complainant has come forward with this appeal.

This case arises in a strange situation and facts. The Advocate is fastening the liability under Section 138, N.I. Act on his client alleging that the amount is payable towards him as legal expenses.

The facts which led to the present appeal could be stated thus :-

Husband of the accused died on 13-6-1992 in a road accident, that took place on 10-6-1992, leaving her and a male child. The accused engaged the complainant to file a claim petition in M.C.O.P. No. 2339 of 1992. Subsequently, mother-in-law of the accused also filed a claim petition in M.C.O.P. No. 246 of 1993 in which also, this complainant has filed vakalat for the accused. Both the claim petitions were heard together and an award for Rs. 2,50,400/- was passed on 10-6-1995. At the request of the accused, the complainant had also filed two suits against her mother-in-law, claiming a share in the house property, as legal heir of her husband and another suit claiming Rs. 30,000/- being the value of the jewels and articles which were retained by the mother-in-law. As per the terms of the award, in part payment of 50% of her share, the accused received the cheque for Rs. 63,072.50/- on 14-3-1996.

The case of the complainant is that towards legal fee and expenditure payable for conducting the cases, the accused has issued Ex. P-1 cheque for Rs. 43,600/- dated 16-3-1993. The cheque amount was being given to clear the liability towards the complainant. The cheque was presented for collection by the complainant through his Banker, Madras Central Co-operative Bank, Anna Nagar. The cheque was returned on 19-3-1996 with endorsement "insufficiency of funds". The complainant contacted the accused on that day itself and informed her about the return of the cheque. The accused informed the complainant that she would deposit the cheque for the amount of Rs. 63,072.50/- and the complainant could represent the cheque. Accordingly, the complainant has represented the cheque for Rs. 43,600/- on 23-3-1996. During the second presentation also, the cheque was returned as bounced with a note "payment stopped". After the issuance of the statutory notice, the complainant filed the complaint alleging that the accused committed the offence punishable under Section 138, N.I. Act.

To substantiate the averments in the complaint, in the trial Court, PW-1 complainant, P.Ws. - 2 and 3 - Bankers of the complainant and the accused were examined, Ex. Ps. 1 to 8 were marked. Case of the accused is that no amount is payable by her and the amount towards stamp duty and others were already paid.

Upon consideration of the evidence, the trial Magistrate found that there is no debt or legally enforceable liability. Finding that no amount is payable on the cheque, the learned Magistrate found that by the return of the cheques with endorsement "insufficiency of funds" and "stop payment", no criminal intention could be attributed to the accused. On those findings, the trial Magistrate has acquitted the respondent/accused of the offence under Section 138, N.I. Act.

Aggrieved over the order of acquittal, the complainant has preferred this appeal.

Assailing the findings of the trial Court, the learned counsel for the appellant submitted that the amount payable by the accused towards stamp duty paid and the legal expenses was not properly appreciated by the trial Court. Placing reliance upon 1998 1 Crimes 268 (SC) : (1998 Cri LJ 1397), it is contended that once the cheque is issued, presumption under Section 139, N.I. Act arises that the holder of the cheque received the cheque of nature referred in Section 138, N.I. Act and the trial Co