The main legal point established in the judgment is the significance of proving consideration for a cheque and the burden of proof on the appellant under section 138 of the Negotiable Instrument Act.

This Criminal Appeal is filed against the order of acquittal passed by the learned Additional Sessions Judge, Krishnagiri in C.A.No.2 of 2008 dated 21.07.2011 reversing the judgment of conviction and sentence passed by the learned judicial magistrate No.II, Hosur in C.C.No.53 of 2006 dated 53 of 2006.

2. The brief case of the appellant :

On 18.7.2005 the respondent/accused borrowed a sum of Rs.1,50,000/- towards his urgent needs from the appellant and issued a post dated cheque bearing No.239157 dated 12.08.2005 from Canara Bank, Hosur on 17.2.2005. The appellant/complainant presented the cheque in Tamil Nadu Mercantile Bank, Hosur, and the same was returned as “exceed arrangement” on 19.12.2005. Hence, appellant/complainant issued a statutory notice on 30.12.2005 and the respondent/accused received the same on 31.12.2005 and sent reply dated 12.01.2006 with false allegations. Hence, the complaint was filed under section 138 of Negotiable Instrument Act.

3. Before the learned Trial Court, the appellant examined himself as PW1 and Exhibits P1 to P7 was marked. The respondent/accused examined himself as DW1 and DW 2 and marked Exhibits D1 and D2.

4. On careful perusal of records, the learned trial Court convicted the respondent/accused for the offences under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one year with fine of Rs.5,000/- in default to undergo further period of 3 months simple imprisonment.

5. Aggrieved over this, the respondent/accused preferred appeal before the learned Additional District Sessions Court, Krishnagiri in C.A.No.2 of 2008 and the learned lower appellate Court was pleased to reverse the findings of the trial Court and acquitted the respondent/accused. Hence the special leave to appeal was sought by the appellant and same was allowed by this Court.

6. The learned counsel for the appellant submits that the order of acquittal passed by the Lower Appellate Court is against law, weight of evidence and all probabilities of the case and liable to be set aside.

7. The learned counsel for the appellant submits that the Lower Appellate Court has failed to note that the execution of the cheque had not been denied, while so it is the burden on the part of the appellant to rebut the presumption arises under section 118 and 139 of Negotiable Instrument Act.

8. The learned counsel for the appellant submits that the reason adduced by the Lower Appellate Court is implausible and same would not fall in the ambit of probable defense. The Court below had simply acquitted the appellant that since all other cheque leaves of the same book to that of the Exhibit P1 was honored.

9. The learned counsel for the appellant submits that the reasons adduced by the Lower Appellate Court is not correct and the respondent herein had himself stated in the reply and the trial that he met with an accident and in view of the same there is no transaction in the year as alleged in the complaint. But he was not able to substantiate his defense version which has been raised by him and the trial Court after analyzing of the witnesses had found him guilty for the offence under section 138 of Negotiable Instrument Act.

10. The learned counsel for the appellant submits that the Lower Appellate Court had erred in allowing the appeal for unsound reasons which cannot be countenanced both in facts and law. The reversal of the lower appellate Court is based only on the surmises not on the evidence. Only a smoke of suspicion alone was attempted to be created by the respondent herein and the lower appellate Court without viewing the veracity of the said ground had simply acquitted the appellant.

11. The learned counsel for the appellant submits that the Lower Appellate Court failed to note the presumption raised as per section 139 of Negotiable Instrument Act is of mandatory presumption and the words ‘unless the contrary is proved’ which occur in this provision makes it clear that the presumption has