The main legal point established is that the complainant must prove the due execution of the cheque by the accused, and that execution of a cheque means giving it in complete form towards a legally enforceable liability.

1. This Appeal is directed against the Judgment of acquittal passed in C.A.No.86 of 2011 on the file of the learned Additional District Judge, Fast Track Court No. III, Coimbatore, dated 17.09.2011 reversing the Judgment of Conviction sentencing the respondent to undergo simple imprisonment of 1 year and fine Rs.5,000/- and in default to undergo 3 months imprisonment vide the order dated 04.01.2011 in C.C.No.141 of 2008.

2. The sum and substance of this Appeal as follows :

It is the case of appellant S.R. David that the respondent D.Sridhar borrowed a sum of Rs.2,10,000/- on 15.07.2007 from him. It was agreed by him to repay the said amount within two months from date of borrow. However, the respondent failed to keep up his promise.

3. When the complainant/appellant demanded the above amount, the respondent issued a Cheque bearing No.245839 dated 08.01.2008 drawn on ING Viyasa Bank towards his liability. Accordingly as per respondent’s instruction the cheque was presented for encashment. However the cheque remained dishonored with an endorsement account closed. Thereupon a legal notice was issued to the respondent calling upon him to repay the amount. Even then as there was no payment made by the respondent, the above complaint in C.C.No.141 of 2008 came to be lodged by the appellant for an offence punishable under section 138 of N.I. Act.

4. To substantiate his claim the complainant examined himself as PW1 and documents in Ex.P1 to Ex.P4 were marked. Ex.P1 is the dishonored cheque, Ex.P2 is the return memo and Ex.P3 and Ex.P4 are the legal notice and its acknowledgment respectively.

5. Defending the appellant’s complaint the respondent adduced both oral and documentary evidence and on defense side 3 witnesses including the appellant was examined and documents in Ex.R1 to Ex.R9 were marked.

6. After keen contest, the trial Court was pleased to hold the respondent/accused guilty of the offence punishable under section 138 of N.I. Act towards the dishonor of cheque issued by him to the appellant. Accordingly, the Trial Court convicted and sentenced the respondent in above terms.

7. Aggrieved over conviction the respondent herein filed Appeal in C.A.No.86 of 2011 before the learned Additional District Judge, Fast Track Court No. III, Coimbatore. The lower Appellate Court on evaluation of the Trial Court’s judgment and case records set aside the conviction of accused holding that the complainant has not come to Court with clean hands and that the subject cheque of the complaint was found materially altered both in figure and the ink also varied. Therefore misbelieved the version of the complainant, the Appellate Court rejected the complainant’s case holding to be untrue and not credit worthy. As against the same the present Appeal is filed.

8. I heard Mr.G.Shivasurya, learned counsel for the appellant and Mr.N.Manokaran, learned counsel for the respondent and perused the entire materials available on record.

9. The prime ground of attack over the impugned order is that the Appellate Court erred in fixing the burden of proof on the complainant when the initial burden of proof rest upon the accused. It is the case of the appellant that once signature in the cheque is admitted, the respondent is liable to be punished.

10. When the respondent had not successfully rebutted the presumption against him, the appellate Court ought not to have set aside the well reasoned judgment of conviction of the Trial Court.

11. It is also contended that the Appellate Court below erred in verifying the variations of signatures, handwriting and ink in Ex-P1 for the reason that the trial Court has already scrutinized the said cheque.

12. Per contra it is the case of the respondent/accused that in actual blank cheques were issued in respect of a chit transaction pertaining to a chit fund activity conducted by the complainant. Whereas the said blank cheques issued for security purpose came to be misused by the appellant/complainant.

13. It is further case of