The burden of proof in cases under Section 138 of the Negotiable Instruments Act lies with the complainant, who must establish the charge beyond reasonable doubt.

JUDGMENT

(Prayer: This Criminal Appeal is filed under Section 378 of Cr.P.C., to set aside the acquittal passed in C.A.No.132 of 2008 on the file of the I Additional Sessions Judge (PCR), Trichy dated 05.10.2012 and restore the conviction judgment passed by the Judicial Magistrate Court No.V, Trichy dated 07.11.2008 in C.C.No.40 of 2008 by allowing this appeal.)

1. This appeal has been filed by the complainant in C.C.No. 40 of 2008, on the file of the Judicial Magistrate No.V, Trichy. It is a private complaint instituted for punishing the respondent herein for the offences under Section 138 of the Negotiable Instruments Act. The respondent was convicted by the learned Judicial Magistrate No.V, Trichy and sentenced to one year Rigorous Imprisonment and he was also directed to pay a compensation of Rs.2,00,000/- to the complainant. The default sentence of two months was imposed in the event of failure to pay the compensation amount. Aggrieved by the same, the respondent/Accused herein filed an appeal in C.A.No.132 of 2008 before the I Additional District and Sessions Judge (PCR), Trichy. The appellate Court by the judgment, dated 05.10.2012, allowed the appeal and acquitted the respondent/accused herein. Challenging the same, this appeal has been filed by the complainant under Section 378 of Cr.P.C.

2. The learned counsel for the appellant/complainant submitted that the trial Court rightly convicted and sentenced the respondent herein and that the said judgment of the trial Court did not call for any interference. His pointed contention is that the appellate Court lost sight of the statutory presumption available to the complainant under Section 139 of Negotiable Instruments Act. He also submitted that the appellate Court went wrong both in law as well as on facts. His pointed contention is that the accused had not really denied the signature found on the complaint cheque and that the explanation given by him ought to have been rejected as a concocted story.

3. Per contra, the learned counsel for the respondent/accused submitted that this being an appeal against an acquittal, this Court should prefer the approach adopted by the appellate Court. He submitted that the appellate Court had passed a well reasoned order and called for dismissal of this appeal.

4. I carefully considered the rival contention and went through the entire evidence on record.

5. The case of the complainant/appellant is that the respondent borrowed a sum of Rs.2,00,000/- from him on 10.07.2000 with a promise to repay the same in six months. Towards discharge of his liability, the respondent issued the Cheque bearing No.592650, dated 14.02.2003 drawn on Union Bank of India, Trichy Branch, favouring the complainant for a sum of Rs.2,00,000/-. The cheque was presented for collection on 24.02.2003. It was returned un-paid. The complainant issued statutory notice dated 07.03.2003 and the same was received by the accused, who issued reply notice dated 22.03.2003. Since the accused did not comply with the demand set out in the statutory notice dated 07.03.2003, the complainant filed C.C.No.40 of 2008 on the file of the learned Judicial Magistrate No.V, Trichy. The complainant examined himself as P.W.1. He also marked the complaint cheque as Ex.P1. The return memo was marked as Ex.P2. The statutory notice was marked as Ex.P.3. The Acknowledgement Card was marked as Ex.P4. The reply notice, dated 22.03.2003 issued by the accused was marked as Ex.P5.

6. The accused, who denied the charge, examined himself as D.W.4. He also examined three other witnesses in support of his defence. He marked Ex.D1 to Ex.D8. As already pointed out, the learned trial Judge noted that neither the signature in the cheque nor his issuance was disputed by the accused and therefore, the presumption under Section 139 of the Negotiable Instruments Act was drawn against the accused. The learned trial Judge further held that the accused failed to rebut the aforesaid statutory presumption. In that view of