The burden of proof in cheque bouncing cases lies with the accused to prove the non-existence of a debt or liability, as per Section 139 of the NI Act.

M.V. MURALIDARAN, J.

1. The unsuccessful complainant in case relating to offence punishable under Section 138 of the Negotiable Instruments Act (in short "NI Act") is the appellant herein. He filed C.C.No.609 of 2002 before the Judicial Magistrate No.II, Coimmbatore against the accused alleging offence under Section 138 of the NI Act on the ground that in order to discharge the loan amount, on 26.3.2002, the accused issued two cheques from the 1st accused firm account, in which the 2nd accused was the Managing Partner. On 29.4.2002, the complainant presented both the cheques for collection before his banker viz., Indian Overseas Bank, Gandhipuram Branch, Coimbatore-12, but the same were returned unpaid on 2.5.2002 with a bankers Memo containing endorsement funds insufficient. Thereafter, the complainant caused a legal notice dated 13.5.2002 through his counsel. Though the accused received the notice served on certificate of posting and after knowing the contents therein, refused to receive the registered post and the same was returned as not claimed. Since the accused failed to repay the amount nor issued reply within the stipulated time, the complainant had filed the complaint under Section 138 of the NI Act.

2. During trial in the trial Court, the complainant examined himself as P.W.1 and one Duraisamy was examined as P.W.2. On the side of the complainant, 11 documents were marked. On the side of the accused, 3 witnesses were examined and 2 documents were marked.

3. The trial Court, after considering the contention of both the parties, found the accused not guilty of the offence under Section 138 of the NI Act and acquitted the accused by stating that the complainant has failed to prove that the 2nd accused received a sum of Rs. 50,000/- from the complainant as loan and in order to discharge the said loan, she had given the impugned two cheques and also the role played by the 2nd accused in Srivalsa Agency.

4. Aggrieved by the judgment of the trial Court, the present appeal has been preferred by the complainant/appellant under Section 378 Cr.P.C. Bare reading of Section 378 Cr.P.C(Appeal in case of acquittal) makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.

5. Applying the above said provision, it will now be appropriate to advert to the factual matrix of the case.

6. The learned counsel for the appellant challenged the findings of the trial Court on the ground that the accused issued the two impugned cheques dated 28.3.2002 bearing Nos.1642561 and 1642562 for an amount of Rs. 25,000/- each in favour of the complainant and when the said cheques were presented for encashment, the same were returned with an endorsement that funds insufficient. Since the cheques were bounced for insufficient funds, the complainant caused a legal notice to the accused on 13.5.2002. Despite receipt of the notice, the accused have not paid the amount and having followed with the procedure, the complainant had filed the complaint.

7. Per contra, the learned counsel for the accused submitted that the trial Court after analysing the oral and documentary evidence rightly acquitted the accused and there is no need to interfere with the same. He would submit that after pointing out lot of suspicion, the trial Court arrived at such a finding and the said finding of the trial Court is based on evidence and prayed for dismissal of the appeal.

8. I heard Mr.Su.Srinivasan, learned counsel for the complainant and Mrs.S.Sujatha, learned Legal Aid Counsel for the accused and also perused the materials available on