The complainant must prove the existence of a subsisting debt to warrant conviction under Section 138 of the Negotiable Instruments Act.

This appeal has been preferred against Judgment in STC.No.1240 of 1997 on the file of the Court of Judicial Magistrate No.V, Coimbatore. The complainant has preferred a private complaint under Section 200 of Cr.P.C for offence under Section 138 of Negotiable Instrument Act.

2. In the private complaint the complainant would alleged that the accused had borrowed Rs.3,00,000/- from the complainant, a partnership firm which was represented by the complainant, the Managing Partner S.N.Sankaranarayanan. It is the definite case of the complainant that the accused had issued a cheque for Rs.4,35,000/- dated 13. 1997 drawn on Bank of Baroda, Coimbatore. The said cheque was issued by the accused to discharge the said loan. When the cheque was presented before the Tamil Nadu Mercantile Bank, Big Bazar Branch, on 13. 1997, the same was returned on 13. 1997 with an endorsement "no sufficient funds". The accused had issued the cheque with a view to defraud the complainant. The accused failed to arrange funds to honour the cheque. The complainant issued a lawyers notice dated 23. 1997 informing the accused about the dishonouring of the cheque and called upon him to pay the amount within 15 days from the date of receipt of notice. The accused received the notice on 23. 1997. But the accused has not chosen to send any reply nor repay the amount. Hence, the complaint.

3. The learned trial Judge has taken the complaint on file after recording the sworn statement as STC.No.1240/1997 and issued summon to the accused for appearance. On appearance of the accused, the learned trial Judge has furnished copies to the accused under Section 207 of Cr.P.C and when the offence was explained to him the accused pleaded not guilty. On the side of the complainant P.W.1 and P.W.2 were examined and Ex.P.1 to P.7 were marked.

4. P.W.1 is the complainant. He would depose that he is the partner of the complainant-company viz. Idayam Investments and that the accused-Ramasamy had borrowed Rs.3,00,000/- as a loan and issued a cheque dated 17.03.1997 for a sum of Rs.4,35,000/- and when the said cheque was presented in the Bank on 13. 1997, the same was dishonoured on 13. 1997 on the ground that there was no sufficient funds in the account of the accused. The complainant had issued notice on 23. 1997 informing about return of the cheque. The said notice was received by the accused on 23. 1997 but the accused neither sent any reply nor paid the debt amount. Ex.P.1 is the dishonoured cheque. Ex.P.2 is the banks memo. Ex.P.3 is the copy of the notice issued by the complainant to the accused. Ex.P.4 is the acknowledgment for the notice being received by the accused. When P.W.1 was recalled and examined in chief further on 13. 1999, he would depose that the said loan of Rs.3,00,000/-was advanced to the accused by way of a cheque of Tamil Nadu Mercantile Bank and Ex.P.6 is the counterfoil for the said cheque dated 112. 1993. He would further depose that Ex.P.7 is the income tax returns submitted by the complainant for the assessment year 1998-1999.

5. P.W.2 is an employee of Bank of Baroda, Coimbatore Branch. According to P.W.2, Ex.P.1-cheque leaf belongs to the Bank of Baroda and that the said cheque along with the cheque book was given to the accused since he has opened an account with the said Bank and that Ex.P.1-cheque was drawn for a sum of Rs.4,35,000/- and the said cheque was presented in his Bank through Tamil Nadu Mercantile Bank on 13. 1997 and that the said cheque was returned with an endorsement that there is no sufficient funds available in the accounts of the accused. Ex.P.5 is the statement of accounts relating to the account of the accused.

6. After going through the evidence both oral and documentary produced before him, the learned trial Judge has come to the conclusion that the guilt against the accused under Section 138 of Negotiable Instruments Act was not proved beyond any reasonable doubt and consequently acquitted the accused under S