1. The complainant in C.C.No.60 of 2004 on the file of the Judicial Magistrate, Mettupalayam is the appellant. The complainant filed the above complaint against the respondent for offence under Section 138, 141 and 142 of the Negotiable Instruments Act. The learned Judicial Magistrate, on perusal of the oral and documentary evidence, found the respondent guilty under Section 138 of the Negotiable Instruments Act and convicted him and sentenced to undergo rigorous imprisonment for six months and to pay a sum of Rs.10,000/-as compensation to the complainant under Section 357(3) of the Cr.P.C.,.

2. The respondent challenged the above judgment of the learned Judicial Magistrate by filing Criminal Appeal No.44 of 2007 on the file of the Additional District & Sessions Judge, (Fast Track Court No.II), Coimbatore. The learned lower appellate Judge allowed the appeal and set aside the judgment of the learned Judicial Magistrate and acquitted the respondent. Aggrieved by the same, the present Appeal is filed by the appellant.

3. It is submitted by the learned counsel for the appellant that the lower appellate Court without properly appreciating the well considered the judgment of the learned Judicial Magistrate, Mettupalayam, allowed the appeal by relying upon the judgment reported in 2005 (1) CTC 416 in the matter of Rajendra Finance V. S. Alosius Thairiyanatham and held that even according to the appellant amount was borrowed by the respondent and his wife and the cheque was issued by the respondent alone and therefore, the cheque cannot be stated to be issued for legally enforceable liability payable by the respondent. He submitted that when two persons borrowed money, they are jointly and severally liable as per the Provisions of the Contract Act and if any one of them issued a cheque towards that liability, that is legally valid and this aspect was not properly appreciated by the lower appellate Court. He also submitted that the lower appellate Court also erroneously held that the cheque was filled by the complainant and that was proved by difference in ink in the writings on the cheque as well as in the signature and therefore, the cheque is invalid by relying upon the judgment reported in 2006 (5) CTC 296 in the matter of P.Eswaran Vs. J.A.Abdul Hameed. He also submitted that the lower appellate Court erred in holding that the appellant did not prove passing of consideration without properly appreciating Section 118 of the Negotiable Instruments Act, by which the presumption can be drawn in favour of payee when the signature is admitted in the cheque and therefore, he submitted that the judgment of the lower appellate Court is liable to be set aside.

4. The learned counsel for the respondent submitted that the lower appellate court rightly set aside the conviction and allowed the appeal by relying upon the judgments in 2005 (1) CTC 416 in the matter of Rajendra Finance v. S.Alosius Thairiyanatham; 2006 (5) CTC 296 in the matter of P.Eswaran vs. J.A.Abdul Hameed and 2006 (3) CTC 730 in the matter of Narayana Menon @ Mani, M.S. v. State of Kerala. He submitted that the appellant failed to prove passing of consideration of Rs.80,000/- on 1.7.2001 and issuance of the chque by the respondent on that date and that was also made probable by the cheque wherein the contents of the cheque was written in one ink and the signature was in a different ink and that was rightly appreciated by the lower appellate Court by relying upon the judgment reported in 2006 (5) CTC 296 supra. He further submitted that the presumption under Section 118 of the Negotiable Instruments Act cannot be drawn in favour of the complainant/appellant in the absence of any proof produced by the appellant that he had the means to give Rs.80,000/-to the respondent and only after the appellant discharges the onus of him, the respondent has to rebut the presumption. In this case, the appellant has not proved the passing of consideration under the cheque. Therefore