Accused has rebutted presumption arising under Section 139.

(Appeal against the Judgment dated 22.11.2002 made in C.C.No.134 of 1996 on the file of the learned District Munsif-cum-Judicial Magistrate, Avinashi.)

This appeal is preferred by the complainant challenging the Judgment of acquittal passed by the Judicial Magistrate, Avinashi, in C.C.No.134 of 1996 dated 22.11.2002 acquitting the accused for the offence under Section 138 of Negotiable Instruments Act (for short "The Act").

2. The case of the complainant is that on 10.04.1996, the accused borrowed Rs.2,50,000/- from him with a promise to return the same within a period of two months. Thereafter, the complainant made several reminders to the accused to repay the amount and ultimately on 10.05.1996, the accused issued a cheque, Ex.P.1, dated 10.05.1996 for a sum of Rs.2,50,000/- drawn on State Bank of India, Avinashi Branch, in favour of the complainant. The complainant further stated that on 23.08.1996, he has deposited the cheque, Ex.P.1, dated 10.05.1996 before the State Bank of India, Avinashi. Thereafter, the cheque was dishonoured on the ground of "Insufficient Funds". Ex.P.2 is the Banker's Memo. Ex.P.3 is the State Bank of India, Bank Chalan, dated 23.08.1996. Thereafter, the complainant sent a registered legal notice, Ex.P.4, dated 26.08.1996 calling upon the accused to pay the amount towards the dishonoured cheque. The accused gave a reply, Ex.P.5, dated 07.09.1996, denying the averments contained in the legal notice sent by the complainant. The complainant sent a rejoinder notice under Ex.P.6 dated 17.09.1996. But in spite of receiving the notice and even after 15 days from the receipt of the notice, the accused failed to pay the amount towards the dishonoured cheque, Ex.P.1 and therefore the complainant stated that the accused has committed the offence punishable under Section 138 of the Act.

3. The complainant, in order to prove his case, examined himself as P.W.1 and examined P.W.2, the Accountant of the State Bank of India and the complainant marked Exs.P.1 to P.9.

4. When the accused was questioned under Section 313 Cr.P.C., he denied his complicity in the offence and he has not chosen to examine any witness on his side and he has marked Ex.D.1, the reply notice sent by him to the complainant dated 12.10.1996.

5. The learned Magistrate on consideration of the entire evidence available on record through the evidence of P.Ws.1 and 2 as well as the Exs.P.1 to P.9 and Ex.D.1 has come to the conclusion that the complainant has not proved his case for establishing the ingredients of the offence under Section 138 of the Act, by adducing acceptable evidence and acquitted the accused on the following grounds:

i. The complainant has not stated in his legal notice, Ex.P.4 for what purpose the amount was given by him to the accused as a loan and it is also not mentioned on what date the amount was paid.

ii. There is no explanation for presenting the cheque, Ex.P.1, dated 10.05.1996 only on 23.08.1996 and therefore the defence version that the accused gave two blank cheques while he joined in the chit funds organised by the complainant as security for taking the chit amount and the complainant has filled up one of the cheques and misused the same by foisting a case against the accused.

iii. The present version of the complainant that he has presented the cheque, Ex.P.1 dated 10.05.1996 on 23.08.1996 at the instruction of the accused, is not stated either in his notice, Ex.P.4 or in his complaint.

iv. A perusal of the cheque, Ex.P.1, dated 10.05.1996 shows that the signature is in one ink and the letters written in the cheque is in different ink which raises doubt about the genuineness of Ex.P.1.

v. The complainant suppressed the material facts in his notice, Ex.P.4, complaint and in his chief examination and those materials are the issue of reply notice by the accused, Ex.D.1, and the particulars mentioned in the Ex.P.6, the rejoinder.

6. Learned counsel for the Appellant, while assailing the Judgment of acquittal submitted