The burden of proof under Section 138 of the Negotiable Instruments Act lies with the complainant, who must establish the case beyond reasonable doubt.

The present appeal has been filed by the appellant against the order of acquittal passed in C.C.No.6 of 2007 dated 21.11.2009 by the learned Judicial Magistrate No.VI, Coimbatore under Section 138 of the Negotiable Instruments Act, 1881.

2. The case of the appellant/complainant is as follows:

(i) The respondent, who is a friend of the appellant/complainant, borrowed Rs.6,00,000/- as hand loan from him during the year 2006 for his business development. After repeated demands, for discharge of the said loan, the respondent issued a cheque bearing No.768492, dated 23.11.2006 drawn on I.C.I.C.I. Bank, Pricol Complex, Periyanaickenpalayam, Coimbatore in favour of the appellant. The appellant, presented the said cheque through Canara Bank and the same was returned on 24.11.2006 with an endorsement "insufficient fund" vide return memo along with debit advice. Hence, the appellant issued a legal notice dated 28.11.2006 through RPAD and the same was received by the respondent on 04.12.2006. On receipt of the said notice, the respondent sent a reply notice dated 11.12.2006 stating that he never borrowed any amount from the appellant. Hence, the appellant sent a rejoinder on 14.12.2006. As the respondent failed to repay the loan amount, the appellant/complainant filed a complaint before the learned Judicial Magistrate No.IV, Coimbatore under Section 138 of the Negotiable Instruments Act, 1881. The Court below after taking cognizance of the offence, taken the complaint on file.

(ii) In order to prove the case of the appellant, he examined himself as P.W.1 and marked the documents as Exs.P.1 to P.9.

(iii) When the above incriminating materials were put to the respondent/accused under Section 313 Cr.P.C., the respondent denied the same as false. However, in order to prove his case, he did not examine any witness and he has not marked any document on his side.

(iv) The learned trial Judge, after considering the entire records and the submissions made by the learned counsel on either side, by judgment dated 21.09.2007 in C.C.No.6 of 2007 dismissed the complaint and acquitted the respondent. Aggrieved by the acquittal of the respondent/accused, the present Criminal Appeal has been filed by the appellant.

3. The learned counsel for the appellant submitted that the respondent borrowed a sum of Rs.6,00,000/- in the month of May 2000 for his urgent needs for development of his business. He promised to pay the said sum within a period of one month. Despite repeated demands, the respondent did not come forward to pay the money. But, to discharge the debt, he issued a cheque bearing No.768492, dated 23.11.2006 drawn on ICICI Bank, Pricol Complex, Periyanaickenpalayam, Coimbatore in favour of the appellant on 23.11.2006. At the time of issuing the cheque, the respondent informed the appellant that the cheque would be honoured at the time of presentation. Therefore, the appellant, believing on the words of the respondent, on the same day, immediately presented the cheque for collection through his Bank viz., Canara Bank, Gudalor Branch, Coimbatore and the said cheque was returned as dishonoured for the reason "Funds insufficient" with debit advice dated 25.11.2006 and hence, he immediately issued a legal notice dated 28.11.2006, Ex.P.5 to the respondent. The respondent, after receipt of the said notice, sent a reply notice 11.12.2006, Ex.P.7 refusing the allegations and he did not repay the amount. Hence, the appellant filed a complaint.

4. The learned counsel for the appellant further submitted that the trial Court has miserably failed to note that once the cheque is issued under the provisions of the Negotiable Instruments Act, the onus is on the side of the respondent to disprove or to rebut the legal presumptions under Sections 139 and 118 of the Negotiable Instruments Act. The respondent has not taken any steps to prove the defence raised in Ex.P.7, the reply notice dated 11.12.2006 by examining any witness or any document before the Court belo