The presumption that a cheque is issued in discharge of any debt or other liability can be rebutted by evidence, and the burden of proof is on the person who wants to rebut the presumption.

This appeal has been preferred by the Complainant under Section 138 of Negotiable Instruments Act against the judgment in C.C.No.497 of 2000 on the file of Judicial Magistrate No.1, Erode .

2. According to the complainant, the accused had borrowed a sum of Rs 3,00,000/-(Rupees three lakhs) Only on 7. 1999 to meet his business expenditure and had drawn a post dated cheque for Rs.3,00,000/-which on presentation before the Indian Overseas Bank, Erode, was dishonoured on the ground that there was no sufficient funds in the account of the accused to honour the same. A lawyers notice was sent by the complainant dated 12. 2000 demanding the cheque amount. There was a mistake crept in the notice dated 12. 2000 with regard to the cheque amount instead of mentioning the cheque amount was Rs.3,00,000/-mistakenly it was mentioned in the notice as Rs.30,000/- Hence a rejoinder notice was issued by the complainant dated 22. 2000. The said notice was received by the accused on 22. 2000 but no reply was sent by the accused. Hence the complaint.

3. The complaint was taken on file by the learned Judicial Magistrate, after taking cognizance of the same and after the accused appearing 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. Before the trial Court, on the side of the complainant, the complainant was examined as P.W.1 and exhibited Exs P1 to P9. On the side of the accused, the accused had examined himself as D.W.1 and exhibited Ex D1 and D2. No material object was marked.

5. After going through the evidence both oral and documentary, the learned trial Judge has dismissed the complaint on the ground that there was no material placed before the trial Court to show that the complainant had sufficient funds to advance the loan amount of Rs.3,00,000/- to the accused and that the accused had no capacity to repay the said loan amount. Aggrieved by the findings of the learned trial Judge, the complainant has preferred this appeal.

6. Now the point for determination in this appeal is whether the charge under Section 138 of Negotiable Instruments Act has been proved beyond any reasonable doubt against the accused.

7. Heard Mr.N.Manoharan,learned counsel for the appellant and Mr.I.C.Vasudevan, learned counsel for the respondent and considered their rival submissions.

8. The Point:

Section 138 of the Negotiable instrument Act runs as follows:-

"Where any cheque drawn by a person on an account maintained by him with a banker 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 other liability, is returned by the bank unpaid, 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 that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless:-

.(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

.(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the sa