The duty of the complainant to prove the purpose of the cheque and the rebuttable nature of the presumption under Section 139 are crucial in establishing liability under Section 138 of the Act.

This appeal has been preferred against the judgment in C.C.No.57 of 1998 on the file of the Judicial Magistrate No.2, Salem.

1. The appellant who had preferred a complaint against the accused under c(hereinafter referred to as "the Act) has lost his case before the trial Court has preferred this appeal.

2. According to the complainant, the accused had borrowed Rs.2,00,000/- under a promissory note on 11. 1996 and issued a cheque for Rs.2,00,000/- on 21. 1998 and when the cheque was presented before the Indian Overseas Bank, Suramangalam Branch, Salem, the same was returned with an endorsement that there is no sufficient funds in the account of the accused. On 2. 1998, the complainant had issued a notice informing about the return of the cheque. After receiving the notice, the accused had sent a reply on 12. 1998 but not chosen to repay the amount. hence the complainant had approached the Court under Section 138 of the Act.

3. The complaint was taken on file by the learned Judicial Magistrate, after taking cognizance of the same and after the accused appeared on summons, copies under Section 207 of Cr.P.C were furnished and when the offence was explained to the accused, he pleaded not guilty.

4. On the side of the complainant, P.Ws 1 to 3 were examined and Exs P1 to P8 were marked.

5. P.W.1 is the complainant who would narrate the averments stated in his complaint.

5a. P.W.2 is the Assistant Manager of Indian Overseas Bank, Suramangalam Branch wherein the complainant is having his account. According to him, Ex P1 is the cheque dated 21. 1998 presented for collection and the said cheque was forwarded to the Central Bank of India, Agraharam Branch, Salem, wherein, the accused is having his account. The said cheque Ex P1 was returned by the Central Bank of India with Ex P3 memo stating that there is no sufficient fund in the account of the accused.

5b. P.W.3 is the Assistant Manager of Central Bank of India, Agraharam Branch, and Salem who would admit that Current Account No.361 relates to the accused. He would further admit that Ex P1 cheque belongs to their bank which was given to the accused for his use. According to him, Ex P1 cheque was forwarded to his bank by the Indian Overseas Bank,Suramangalam Branch, for collection. But on the same day itself it was returned to Central Bank of India with an endorsement that there is no sufficient fund in the current account of the accused to honour the same.

6. When the incriminating circumstances were put to the accused, he denied his complicity with the crime. He has examined D.W1 and D.W.2 besides examining himself as D.W.3 and exhibited Exs D1 to D3.

7. After analysing both oral and documentary evidence meticulously, the learned trial Judge has come to a conclusion that the complainant has failed to prove the guilt against the accused under Section 138 of the Act and accordingly dismissed the complaint thereby acquitting the accused which necessitated the complainant to approach this Court by way of this appeal.

8. Now the point for determination in this appeal is whether the offence under Section 138 of the Act has been attracted against the accused to warrant conviction?

9. Heard Mr.S.Kalyanaraman, learned counsel for the appellant and Mr.V.Manokar, learned counsel for the respondent and considered their rival submissions.

10. The Point:

This appeal has been preferred against the order of acquittal. Under such circumstances, the only point to be decided in this appeal is whether the findings of the learned trial Judge is perverse in nature to warrant interference from this Court.

10a. The case of the accused projected through D.Ws 1 to D.W.3 was accepted by the learned trial Judge and only on that basis the learned trial Judge has acquitted the accused from the charges levelled against him. But the learned trial Judge has failed to consider whether ExP1 cheque was handed over by the accused to the complainant and whether the said cheque on presentation in the