An appellant must establish the existence of a legally enforceable debt to invoke presumption under Section 139 of the Negotiable Instruments Act, as mere dishonour of the cheque does not suffice for action under Section 138.

JUDGMENT :

M. Dhandapani, J.

The unsuccessful complainant, having lost before the trial court, has assailed the said order, passed in S.T.C.No.1742 of 2015 on the file of learned District Munsif cum Judicial Magistrate, Sriperumbudur dated 27.04.2017, in and by which the respondent herein was acquitted in the case u/s 138 of the Negotiable Instruments Act (for short ‘the Act’), has filed the present appeal.

2. It is the case of the appellant that the respondent along with her husband had borrowed a sum of Rs.1,50,000/- to meet out her urgent financial needs from the appellant. However, after much persuasion, the respondent issued a post dated cheque on 31.07.2015 for a sum of Rs.1,50,000/- and when the appellant presented the cheque on 28.02.2015 for collection, but the same were returned by his banker with the endorsement ‘Insufficient Funds in the Account’. Since the respondent deliberately failed to pay the amount, the appellant caused a legal notice dated 27.08.2015 and the same was returned with an endorsement no person found. Therefore, left with no other alternative, the complaint was filed by the appellant for an offence u/s 138 of the Act.

3. Upon examination of the complainant on oath u/s 200 Cr.P.C. and perusing the records, the court below, finding a prima facie case being made out, issued summons to the respondent and upon appearance, was provided with a copy of the complaint and the respondent pleaded not guilty.

4. On the side of the appellant, the appellant examined himself as P.W.1 and marked Exs.P-1 to P-5. On the side of the respondent, D.W. 1 was examined and no exhibits were marked. The trial court, appreciating the materials available on record, held that the appellant has not established that there was a legally enforceable debt for which the cheque was issued, which was dishonoured and also failed to prove that the cheques were issued by the respondent for discharging a legally enforceable debt and, accordingly, acquitted the respondent, aggrieved by which, the appellant filed an appeal in Crl.A.No.13 of 2017 before the lower appellate Court and the said appeal was allowed vide judgment dated 17.07.2019. Thereafter, a criminal revision was preferred by the respondent which was transposed and thereby, the present appeal has been filed by the complainant against the order passed by the trial Court as per the direction of this Court.

5. Learned counsel appearing for the appellant submitted that the cheque was issued by the respondent, which stood dishonoured and the respondent has not disputed his signature in the cheque, which clearly shows that there is a legally enforceable debt, which has not been discharged by the respondent. It is the further submission of the learned counsel that the court below had clearly held that the cheque, which was alleged to have been given to the appellant by respondent has not been established by the respondent and had clearly held that it had not been misused by the appellant and that being the case, a duty is cast on the respondent to rebut the presumption u/s 139 of the Act and failure by the respondent would clearly lead to the presumption that the cheque was issued for discharging the legally enforceable debt.

6. It is the further submission of the learned counsel that it is incumbent on the part of the respondent to show how the cheque fell into the hands of the appellant and there being no claim that the cheque was lost as no police complaint was given, the only presumption that could be drawn is that the cheques were given by the respondent to the appellant and, therefore, the