The main legal point established in the judgment is the presumption in favor of the complainant under Section 138, 139, and 146 of the Negotiable Instruments Act, and the burden of proof on the accused to disprove the presumption.

1. This memorandum of Criminal Appeal under Section 378 of Cr.P.C. is directed against the judgment dated 17.06.2009 and made in S.T.C. No.149 of 2006, on the file of the learned Chief Judicial Magistrate, Kanyakumari District at Nagercoil, acquitting the accused on the ground that the offence under Section 138 of the Negotiable Instruments Act, 1881, has not been proved against him. Being aggrieved by the impugned judgment, the appellant who is the complainant therein has approached this Court by way of this memorandum of criminal appeal.

2. For easy reference, the appellant herein may hereinafter be referred to as complainant and the respondent herein may hereinafter be referred to as the accused.

3. The related facts and circumstances which giving rise to the memorandum of criminal appeal may be summarised briefly as follows:-

3.1. That in the month of May 2004, the accused had borrowed a sum of Rs.2,50,000/-from the complainant. When the amount was demanded to be repaid, the accused had issued a cheque (Ex.P1) bearing No.1865037, dated 30.10.2004 for the value of Rs.2,50,000/- drawn on The South India Bank Ltd., Plamoottukada Branch in favour of the complainant. When the cheque was presented on 04.02.2005 for encashment before the Indian Overseas Bank, Vetturnimadam Branch, Nagercoil, it was returned on 18.02.2005, by the bank of the accused on the ground "funds insufficient". The memorandum of the South Indian Bank Ltd., dated 18.02.2005 was marked as Ex.P2. Thereafter the complainant had issued a statutory notice (Ex.P3) dated 01.03.2005 to the accused and thereby put the accused under the notice to repay the amount covered by the cheque Ex.P1. After the receipt of the notice on 02.03.2005 the accused had issued a reply on 16.03.2005. The postal acknowledgement for the receipt of the statutory notice and the reply notice were marked as Exs.P4 and P5 respectively. Since the accused had not chosen to repay the amount the complainant had presented the complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881.

3.2. After taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, the ingredients of the charge were explained and questioned to the accused. For that, he had pleaded innocent and claimed to be tried. In order prove his case, the complainant had examined himself as P.W.1. During the course of his examination Exs.P1 to P5 were marked. On the other hand, neither oral nor documentary evidence was adduced on behalf of the accused. When the incriminating circumstances arising from the testimony of P.W.1 and the documentary evidences were read over and explained, the accused had replied that he never borrowed the amount from the complainant.

3.3. On appreciation of the oral and documentary evidences which are available on record, the learned Chief Judicial Magistrate, Kanyakumari District at Nagercoil had proceeded to pronounce the judgment on 17.06.2009 acquitting the accused on the ground that the offence under Section 138 of the Negotiable Instruments Act has not been satisfactorily established against him. Challenging the impugned judgment, the present memorandum of criminal appeal is brought before this Court.

4. When the appeal came up for hearing, the respondent had not chosen to make her presence either in person or through her counsel despite the services of summons on him. After adjourning for several hearings, the learned counsel Thiru. V.Kathirvelu was appointed as Amicus Curiae to assist the court on behalf of the accused.

5. Heard the learned counsel for the complainant as well as the amicus curiae.

6. The learned counsel appearing for the complainant would submit that all the ingredients contemplated under Section 138 of the Negotiable Instruments Act have been complied with by the complainant and that the presumption as required under Section 139 of the Act is definitely in favour of the complainant and even in spite of that the tr