1. The present appeal has been filed challenging the order passed by the learned Judicial Magistrate, Thiruchengode in C.C.No.619 of 2004 dated 08.09.2009.

2. The facts leading to the filing of the present Appeal is that the respondent has borrowed a sum of Rs.1,75,000/- from the appellant on 21.05.2004 at Alambalayam for his urgent business expenses and in order to discharge the said liability, the accused had issued a post dated cheque bearing No.219367 dated 21.06.2004 drawn on Laxmi Vilas Bank Limited, Olappalayam on the same day. The cheque was presented for collection through the State Bank of India, Pallipalayam Branch on 21.06.2004. However, the same was returned as unpaid on 23.06.2004 with a return memo endorsed as Account closed as per the return memo of the Laxmi Vilas Bank Limited, Olappalayam Branch. Despite assuring the appellant that the cheque issued would be honoured on presentation, the respondent had defrauded the appellant and has committed an offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of I.P.C.

3. The appellant has issued a registered legal notice through his counsel on 16.07.2004 calling upon him to make payments within 15 days from the date of receipt of the notice. The said notice was received by the respondent on 21.07.2004 and a reply to the said notice was given by the respondent on 01.08.2004. Dissatisfied with the said reply, the appellant has filed a complaint before the learned Judicial Magistrate, Thiruchengode in C.C.No.619 of 2004 seeking the Court to take cognizance of the offence against the accused under Section 138 of the Negotiable Instruments Act read with Section 420 of I.P.C.

4. The respondent before the trial Court has taken a plea that cheque Nos.219367 and 219368 have been misplaced by him and has requested the Bank not to make payments in the event these cheques are presented by sending a letter dated 06.03.2002. Further, the respondent has sent a letter dated 05.12.2003 to the bank requesting that the Savings Account bearing No.1755 shall be closed. Further, the respondent has taken a plea that there is no Proprietorship firm functioning under the name as claimed by the complainant and though the complainant accepts that the signature and the handwriting in the cheque belongs to him, he clearly states that once the cheque has been misplaced and there is no business relationship between the appellant and respondent, there is no cause of action that would arise and hence, invoking the provisions of Section 138 is not maintainable.

5. The trial Court, after considering the rival submissions, has concluded that a person would not give a letter to the Bank to stop payment on the cheque and to close the account in the year 2003 itself for a cheque allegedly given to the respondent a year later in 2004. Therefore, there could not be a presumption that the cheque was given by the complainant to the respondent and hence, the trial Court held that the accused was not guilty of committing an offence under Section 138 of the Negotiable Instruments Act and Section 420 of I.P.C. resulting the present Appeal.

6. I heard Mr.N.Manokaran, learned counsel for the appellant and Mr.S.Anandhakumar, learned counsel for the respondent and perused the entire records.

7. The learned counsel for the appellant would submit that the learned trial Judge has got completely carried away by the technicalities of the issues raised and has not considered the important submissions raised by the appellant. To canvass his case, he has submitted that the execution of the cheque has not been denied and once when the cheque has been executed validly, the burden to rebut the same would shift to the accused as per Sections 118 and 139 of the Negotiable Instruments Act. It has also been submitted that no evidence has been let in by the accused to rebut the presumption under Section 139 of the Act except some ipse dixit oral evidence and it is the categoric case of the appella