The burden lies on the complainant to prove the issuance of a cheque for a legally enforceable debt, which was not demonstrated, leading to the dismissal of the appeal.

JUDGMENT :

K.MURALI SHANKAR, J.

The Criminal Appeal is directed against the judgment made in S.T.C.No.128 of 2016 dated 26.02.2019 on the file of the Court of the Judicial Magistrate No.4, Tirunelveli, in acquitting the respondents / accused 1 and 2 for the offence under Section 138 of the Negotiable Instruments (hereinafter referred as 'NI') Act.

2. The appellant, who is the complainant, filed a complaint under Section 200 Cr.P.C. against the respondents / accused 1 and 2 for the alleged offence under Section 138 r/w 142 of the NI Act.

3. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the trial Court.

4. The case of the complainant is that the complainant and the accused are medical practitioners at Tirunelveli and are well known to each other. The accused jointly borrowed a sum of Rs.45 lakhs on several occasions during the period between December-2013 and August-2014 for development of their hospital and agreed to repay the said amount within a short time. Since the accused failed to repay the said amount, the complainant demanded the accused to repay the amount immediately. Hence, the accused on 01.01.2015 gave a post dated cheque dated 10.06.2015 drawn on State Bank of India, Tirunelveli Branch for Rs.45 lakhs in favour of the complainant to discharge their liability, requesting the complainant to present the cheque on 10.06.2015 or subsequently and encash the same. Believing the words of the accused, the complainant presented the cheque for collection on 10.06.2015 through State Bank of India, Tirunelveli Branch but the same was returned dishonored for the reason payment stopped by the drawer. The complainant immediately informed about the dishonor of the cheque to the accused, who in turn requested the complainant to re-present the cheque again after four weeks and they would make necessary arrangements for encashment. The complainant, believing the same, presented the cheque again for collection on 13.07.2015 through State Bank of India, Tirunelveli Branch but the cheque was again returned dishonored as payment was stopped by the drawer, through banker's memo on 13.07.2015. Hence, the complainant sent a legal notice dated 10.08.2015 to the accused demanding them to pay the amount covered by the cheque. The first accused received the said notice on 11.08.2015 but the second accused managed to return as unclaimed. The first accused sent a reply notice dated 20.08.2015 with false and frivolous allegations. Since the accused have not paid the cheque amount within the stipulated time, the complainant was constrained to file the above complaint for the offence under Section 138 of the NI Act.

5. The learned Judicial Magistrate, upon receiving the complaint, recorded the sworn statement of the complainant and on perusing the records, upon satisfied that there existed a prima facie case took the case on file in S.T.C.No.128 of 2016 and ordered for issuance of summons to the accused. After appearance of the accused, copies of the records were furnished to them under Section 207 Cr.P.C. When the accused were questioned about the offence alleged against them, they denied the commission of offence and pleaded not guilty.

6. During trial, the complainant examined himself as P.W.1 and exhibited 7 documents as Ex.P.1 to Ex.P.7.

7. After closure of the complainant's side evidence, the accused were examined