N.Sathish Kumar, J.

Aggrieved over the order of acquittal, made in C.A.No.130 of 2007, dated 15.5.2008, passed by the learned Additional Sessions Judge, Fast Track No.I, Tuticorin, the present appeal has been filed.

2. The parties are referred to as per their rank in the trial Court.

3. The brief facts leading to the filing of this appeal, are as follows:

The complainant has advanced a sum of Rs. 2,50,000/- as loan on 24.08.2002 to the respondent and the respondent agreed to repay the same within a month. Thereafter, on 24.09.2002, the respondent had issued a cheque/Ex.P.1 for Rs. 2,50,000/-, drawn on Indian Bank, Melur. When the complainant presented the same for encashment, the same was dishonoured for the reason 'insufficient funds' under Ex.P.2 memo. Again at the instance of the accused, the cheque was presented for the second time on 08.11.2002 and returned for the same reason under Ex.P.3. Hence, the complainant issued a statutory notice under Ex.P.4. However, the accused neither replied the same nor repaid the amount. Hence, the complainant has preferred a private complaint under Section 138 of the Negotiable Instruments Act.

4. It is the case of the accused that the complainant is a partner in the Ice Factory run by the accused. There was some dispute in the partnership business. As a result, the cheque in question was misused and there was no privity of contract between the accused and complainant. The alleged loan is also improbable. The vehicle of the accused was also transferred in the name of the complainant's wife.

5. The learned Trial Court, considering the evidence and materials on record, found the accused guilty under Section 138 of Negotiable Instruments Act and convicted him to undergo one year simple imprisonment and imposed a fine of Rs. 1,50,000/-, in default to undergo 3 months simple imprisonment. As against which, an appeal was filed by the accused. The appeal was allowed, setting aside the sentence and conviction passed by the learned Trial Court. As against the same, the present Criminal Appeal has been filed by the complainant.

6. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

7. The main contention of the appellant is that admittedly Ex.P.1 was issued by the accused, which is not in dispute. The same was dishonoured for the reason 'insufficient funds' and necessary statutory notice was issued, which has not been replied. Hence, it is the contention of the learned counsel appearing for the appellant that once the ingredients of Section 138 of Negotiable Instruments Act has been made out, a statutory presumption is squarely applicable to the facts of the case. The accused has not rebutted the statutory presumption. The appellate Court has not considered these aspects and hence, submitted that the judgment of the trial Court can be restored by allowing this appeal.

8. On the other hand, the learned counsel appearing for the respondent/accused would contend that Ex.P.1 was not issued by the accused to the complainant and it was misused, taking advantage of the dispute in the partnership business between husband of the accused and complainant. There was no privity of contract between the parties. The alleged advance of the loan is also improbable. The passing of consideration also has not been established. Hence, he submitted that complainant/P.W.1 himself admitted that the accused's vehicle has been transferred in his name and excess amount in fact paid to the accused. All these facts clearly probablize that there was a dispute in the partnership business between the husband of the accused and complainant, wherein, the accused is noway responsible for borrowing any amount. Hence, he prayed for dismissal of the appeal.

9. I have perused the entire materials.

10. A private complaint was filed on the basis of Ex.P.1, said to have been issued towards the loan of a sum of Rs. 2,50,000/- said to have been borrowed by the accused on 24.08.2002. It is