The main legal point established is that the appellant must prove that the cheques were issued for a legally enforceable debt under Section 138 of the Negotiable Instruments Act.

1. This appeal is directed against the order of acquittal in S.T.C. No. 1628 of 2006 on the file of the Learned Judicial Magistrate

2. The case of the Appellant/Complainant is as follows: On 14.1.2006 the Respondent herein issued a post dated cheque bearing No. 251170 drawn on S.D.C. Co Operative Bank, Kangavalli Branch for the amount of Rs.15 Lakhs borrowed from the Appellant/ Complainant on 21.10.2005 and executed a pro-note in favour of the Appellant. The Respondent/Accused requested the Appellant/Complainant to present the cheque for collection on 28.9.2006 and accordingly the cheque was presented and on the same day it was dishonoured due to “funds insufficient”. The Appellant/Complainant issued Mandatory Notice dated 5.10.2016. After the expiry of 15 days the Respondent/Accused sent his reply on 18.10.2006. As the Respondent failed to make payment, the Appellant/ Complainant preferred the complaint.

3. The Respondent/Accused completely denied the case of the Appellant that he borrowed Rs. 15 Lakhs from the Appellant/Complainant, execution of pro-note dated 21.10.2005 and issuance of cheque dated 21.4.2006. There was no liability on the part of him in honour to the cheque in question and the Appellant had managed to collect one cheque leave bearing No. 251170 issued by the Bank in the year 1998 from the Business Partners of the Respondent and forged the signature and presented the cheque for collection on 28.9.2006. The Appellant had no resource to extent the loan of Rs. 15 Lakhs to the Respondent.

4. The Appellant/Complainant examined himself as PW1 and examined the PW2 Bank Manager. The Learned Trail Court on an analysis of the evidence available on record held that the complainant had failed to establish his case beyond reasonable doubt and acquitted the Respondent/Accused for the offence under Section 138 of Negotiable Instruments Act. Aggrieved by the order of acquittal, the Appellant filed the present appeal after obtaining leave.

5. I heard Mr. Sundar Mohan, learned counsel for the Appellant and Mr. V.R. Rajasekaran, learned counsel for the respondent and perused the entire materials available on record.

6. The Learned Counsel appearing for the Appellant submits that the Trail Court on misreading the evidence of PW1 in part and comes to the conclusion that the cheque was not given in discharge of liability.

7. The Learned Counsel for the Appellant further submits that merely because there is no endorsement in the promissory note regarding the receipt of cheque it cannot be held the cheque was not issued in discharge of any debt or liability and there is a statutory presumption in favour of the appellant under Section 139 of Negotiable Instruments Act.

8. The Learned Counsel for the Appellant contends that since the seal of the bank was not found in the return memo it has not been established that the cheque was presented with the bank and dishonoured and the Learned Trail Court failed to consider the evidence of PW2, Bank Manager in a proper prospective. The learned counsel filed the copy of the Order passed in Crl. O.P. No. 31006 of 2007 filed by the Respondent for quashing the S.T.C. No. 1628 of 2006 which was dismissed by this Court on 22.10.2007.

9. Per Contra, the Learned Counsel for the Respondent submits that the Learned Trail Court has approached the evidence carefully and the judgment does not warrant any interference and placed the judgment passed by this Court in Criminal Appeal Nos. 67 and 69 of 2016 dated 31.07.2017 reported in (2017) 3 MLJ (Crl) 679.

10. A cursory perusal of the complaint in S.T.C. No. 1628 of 2006 on the file of the learned Trail Court indicates that the Appellant/Complainant had averred that the Respondent/ Accused is liable to pay the cheque amount with the interest at the rate of 24% and that there was a “Legally enforceable liability” between the Respondent/Accused and the Appellant /Complaint as per under Section 138 of Negotiable Instrument Act.

11. It is to be noted that the c