The Criminal Appeals have been filed by the complainants against the judgments of acquittal, dated 13.11.2002 and 5.1.2006 in C.C.Nos.3726 and 3727 of 2001 respectively, on the file of the IInd Metropolitan Magistrates Court, Egmore, Chennai, whereby, the respondent-accused was acquitted of the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act).

2. The appellants have filed the complaints under Section 138 of the N.I. Act against the respondent-accused. The case of the complainants, which is common in both the cases, is as follows:

The appellants-complainants in both the cases are husband and wife. The appellants-complainants entered into a memorandum of agreement with the brother-in-law of the respondent-accused, on 9.12.1996 in respect of construction of a house and a supplementary agreement also came into existence. Since there was defect in service, the appellants-complainants have filed O.P.No.32 of 1998 before the State Consumer Disputes Redressal Commission, Chennai, wherein, a joint memo was filed on 24.11.1998 and in pursuance of the same, order was passed on the same day. Since the terms specified in the joint memo were not complied with, the Execution Petition was filed by the appellants-complainants. In the said E.P., Mohammed Yaseen, the brother-in-law of the respondent-accused, was sentenced to undergo rigorous imprisonment for two years. Against that, Mohammed Yaseen preferred a Civil Revision Petition in C.R.P.No.3429 of 2000, before this Court and also a petition for bail. In the said Civil Revision Petition, a compromise was entered and Mohammed Yaseen offered to give Rs.14,50,000/- in full and final settlement. In pursuance of the same, memorandum of agreement was entered on 4.12.2000, and Rs.1,50,000/- was paid by way of Demand Draft and receipt has been issued and for payment of Rs.13 lakhs, two post-dated cheques each, dated 5.2.2001, for Rs.6,50,000/-, were issued, one in the name of the appellant in Crl.A.No.325 of 2003 and another, in the name of the appellant in Crl.A.No.148 of 2006. When the cheques were presented, they were returned with return memo by the Bank and a debit advice was also received from the Bank. Notice had been issued by the appellants-complainants on the respondent-accused and the acknowledgement was also received by the respondent-accused. The respondent-accused neither paid the amount, nor sent a reply. Hence, the appellants have filed two separate complaints.

3. After following the formalities, the trial Court questioned the respondent-accused, and he pleaded not guilty. During the course of trial, in Crl.A.No.325 of 2003 pertaining to C.C.No.3726 of 2001, P.Ws.1 to 3 and D.Ws.1 to 3 were examined and Exs.P-1 to P-14 were marked; during the course of trial, in Crl.A.No.148 of 2006 pertaining to C.C.No.3727 of 2001), P.W.1 and D.Ws.1 and 2 were examined and Exs.P-1 to P-14 and Ex.D-1 were marked. On the basis of the oral and documentary evidence, the trial Court dismissed the complaints and the respondent-accused was acquitted of the charge, as indicated above.

4. Challenging the judgments of acquittal, learned Senior Counsel appearing for the appellants-complainants would contend that the trial Court dismissed the complaints stating that there is no subsisting liability on the date of issuance of the cheques and in pursuance of the memorandum of agreement entered on 4.12.2000, the respondent-accused issued two cheques, each for Rs.6,50,000/-, in favour of the respective appellants-complainants. As per Sections 118 and 139 of the Negotiable Instruments Act, the presumption is to be drawn. Learned Senior Counsel appearing for the appellants-complainants relied upon the decision of the Supreme Court reported in 2002 (6) SCC 426 (ICDS Ltd. Vs. Beena Shabeer) and submitted that the cheques were issued in respect of guarantee and if the cheques were bounced, it is an offence under Section 138 of the N.I. Act. Learned Senior