1. The criminal appeal arises out of the judgment of acquittal dated 26.02.2010 made in C.A.No.160 of 2009 on the file of the Additional District and Sessions Court, Fast Track Court No.I, Coimbatore, setting aside the judgment of conviction and sentence dated 06.11.2009 made in C.C.No.91 of 2006 on the file of the Judicial Magistrate No.I, Udumalpet, Coimbatore District (Presently Tirupur District).

2. The appellant/complainant has preferred a private complaint against the respondent/accused for the offence under Section 138 of Negotiable Instruments Act stating that on 21.11.2005, the first respondent/accused obtained a loan amount of Rs.6,50,000/- from the appellant/complainant, for which, the respondent had issued Ex.P1/cheque dated 26.12.2005 drawn in Tamil Nadu Mercantile Bank Limited, Udumalpet Branch. When the appellant has presented the cheque for encashment, the same was returned as 'insufficient funds' on 27.12.2005 and the return memo was marked as Ex.P2. So the appellant issued a Statutory Notice under Ex.P3 and the same was returned with a postal endorsement as 'Not claimed returned to sender', as per return cover/Ex.P4. Hence, the appellant/complainant preferred a complaint against the respondent under Section 138 of Negotiable Instruments Act.

3. The learned Judicial Magistrate No.I, Udumalpet, has taken cognizance of an offence after recording the sworn statement and after following the procedure. Since the accused pleaded not guilty, the trial Court examined P.W.1 and marked Exs.P1 to P4 on the side of the complainant and on the side of the defence, examined D.W.1 and no documentary evidence was marked. The trial Court after considering the oral and documentary evidence, convicted the accused for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/- in default in payment to undergo three months simple imprisonment.

4. Aggrieved by the same, the accused preferred an appeal in C.A.No.160 of 2009, wherein, the Additional District and Sessions Court, Fast Track Court No.I, Coimbatore, after considering the submissions made on both sides and the materials available on record, setting aside the judgment of conviction and sentence made in C.C.No.91 of 2006 and acquitted the accused. Against which, the complainant has preferred this appeal.

5. Challenging the judgment of acquittal passed in C.A.No.160 of 2009 by setting aside the conviction and sentence passed in C.C.No.91 of 2006 under Section 138 of Negotiable Instruments Act, the learned counsel appearing for the appellant would submit that the appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that the respondent herein borrowed Rs.6,50,000/- for his business purpose and agreed to repay the said amount within a month on 21.11.2005. Since she was unable to pay that amount she issued a cheque/Ex.P.1 dated 26.12.2005 for Rs.6,50,000/-, which was presented for encashment and that has been returned on 27.12.2005 as Return Memo/Ex.P.2. Statutory notice/Ex.P.3 under Section 138(b) of Negotiable Instruments Act and that has been returned as per return cover/Ex.P.4. Hence he was constrained to file a complaint. The Trial Court after following the procedure and considering the oral evidence of P.W.1, Ex.P.1 to Ex.P.4 has convicted the respondent/accused under Section 138 of Negotiable Instruments Act and sentencing her to undergo one year rigorous imprisonment and imposing a fine of Rs.5,000/-, in default in payment, to undergo three months simple imprisonment. Against which, the respondent herein has preferred an appeal in Crl.A.No.160 of 2009 and the learned First Appellate Court has set aside the conviction on the ground that the appellant herein has not proved that Ex.P.1/cheque has been issued to him, that too, for discharging legally subsisting liability and the respondent herein has not borrowed an