The burden of proof lies on the complainant to establish the existence of a legally enforceable debt and the issuance of the cheque in discharge of that debt under Section 138 of the Negotiable Instruments Act.

1. Heard both sides.

2. The Appellant/Respondent/Complainant has preferred the present Criminal Appeal before this Court as against the Judgment dated 30.07.2009 in Criminal Appeal No.36 of 2009 passed by the Learned Additional District Sessions Judge, (Fast Track Court No.1), Salem in reversing the Judgment dated 16.04.2009 in STC No.3060 of 2006 passed by the Learned Judicial Magistrate No.5, Salem.

3. It comes to be known that the Learned Additional District Sessions Judge, (FTC No.I), Salem in Criminal Appeal No.36 of 2009 preferred by the Respondent/Accused (As an Appellant) on 30.07.2009 passed a Judgment in allowing the Appeal and set aside the Judgment passed by the trial court in STC No.3060 of 2006 dated 16.04.2009 whereby and where under the Respondent/Accused was convicted in respect of an offence under Section 138 of Negotiable Instruments Act, 1881 and was imposed with a punishment of three years Simple Imprisonment and he was further directed to pay a fine of Rs.3,000/-, in default of payment of fine, he was directed to undergo Simple Imprisonment for a period of 15 months.

4. Being dissatisfied with the Judgment dated 16.04.2009 in STC No.3060 of 2006 passed by the trial court in convicting the Respondent/Appellant/Accused, the Respondent/Appellant/Accused preferred C.A.No.36 of 2009 on the file of the Learned Additional District Sessions Judge, Salem (FTC No.1, Salem) and on 30.07.2009, the Appeal was allowed by the Appellate Court whereby and where under, the Judgment of the Learned Judicial Magistrate No.V, Salem in STC No.3060 of 2006 dated 16.04.2009 was set aside. Further more, the fine amount of Rs.3,000/- (Rupees Three Thousand only) paid by the Respondent/Accused was directed to be refunded to him.

5. Being aggrieved against the Judgment of acquittal dated 30.07.2009 in Crl.A.No.36 of 2009 passed by the First Appellate Court, the Appellant/Respondent/Complainant has preferred the present Criminal Appeal before this Court assailing the correctness, legality and validity of the Judgment dated 30.07.2009 passed in Crl. Appeal No.36 of 2009.

6. According to the Learned Counsel for the Appellant/Respondent/Complainant, the Judgment of the Appellate Court in C.A.No.36 of 2009 reversing the Judgment dated 16.04.2009 in STC No.3060 of 2006 passed by the Learned Judicial Magistrate No.5, Salem is contrary to law, weight of evidence and probabilities of the case. The Learned Counsel for the Appellant/Complainant urges before this Court that the First Appellate Court had failed to note down the provisions of the Negotiable Instruments Act, 1881 and wrongly drew an adverse inference on the complainant.

7. The Learned Counsel for the Appellant/Respondent/Complainant projects an argument that the First Appellate Court had failed to take into account that the cheque was issued by the Respondent/Accused only to discharge the debt (hand loan) together with interest and viewed in that perspective, the Judgment in Crl. Appeal No.36 of 2009 is a perverse one in the Eye of Law.

8. The other plea taken on behalf of the Appellant/Respondent/Complainant is that the First Appellate Court should have appreciated that the Appellant/Complainant's case squarely comes within the ambit of Section 138 of Negotiable Instruments Act, 1881.

9. Lastly, it is the stand of the Appellant/Complainant that the 'Debt' is a legally enforceable one and in reality the First Appellate Court should not have allowed the Criminal Appeal No.36 of 2009 by reversing the Judgment of the trial court dated 16.04.2009 in STC No.3060 of 2006.

10. In response, it is the submission of the Learned Counsel for the Respondent/Accused that in the present case, the Appellant/Complainant had failed to establish that the Respondent/Accused borrowed a sum of Rs.60,000/- (Rupees Sixty Thousand only) on 29.11.2004 and issued a cheque for Rs.80,000/- (Rupees Eighty Thousand only) on 11.09.2006.

11. Apart from that it is represented on behalf of the Respondent/Accused tha