JUDGMENT :

B. SIVA SANKARA RAO, J.

1. The appellant-complainant seeks to assail the judgment of acquittal dated 16.03.2009 passed by the learned Principal Junior Civil Judge, Markapur, in private complaint case C.C. No. 160 of 2007 filed by said complainant against the accused Dodda Surya Narayana (2nd respondent herein), for an offence under Section 138 of the Negotiable Instruments Act (for brevity ‘the Act’).

2. The facts before the Trial Court are that the accused borrowed Rs. 1,49,623 from the complainant but failed to repay despite demands, ultimately the accused issued Ex.P.1 cheque from his account in favour of the complainant for said amount, dated 04.10.2006 drawn in State Bank of India, Markapur, presented for collection in Syndicate Bank, Markapur, on 01.03.2007, returned dishonoured on the reason of ‘insufficiency of the funds’ covered by Ex.P.2 cheque return memo, and Ex.P.3 is returned cheque and the same is intimated to the accused through legal notice, dated 05.03.2007 covered by Ex.P.4, issued by the complainant to the accused, and though the accused received notice not paid the amount, hence the complainant is constrained to file the private complaint case.

3. The accused appeared before the Court pursuant to the summons and after supply of case copies under Section 207 of the Code of Criminal Procedure, when questioned on substance of accusation under Section 251 of the Code of Criminal Procedure (for brevity, “The Cr.P.C.”) he pleaded not guilty.

4. On behalf of the complainant during the course of trial besides himself as PW1 cause examined PW2 K.V.S. Siva and got marked Exs. P.1 to P.4, as mentioned above and the accused also cross-examined the PWs. 1 and 2 and on defence side the accused examined himself as DW-1 only and got marked Ex.D.1 calculation memo.

5. After closure of evidence, the accused was examined under Section 313 of the Cr.P.C. who denied the incriminating material put to him and stated no defence.

6. Appreciating the evidence, both oral and documentary, the Court below ultimately held that the complainant could not prove guilt of the accused for the offence under Section 138 of the N.I. Act and thereby not found guilty in acquitting the accused with findings that in view of the principles of law laid down by the Apex Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 1 SLT 593 : (2008) 1 CCR 199 (SC) : (2008) 2 BC 44 (SC) : (2008) 1 DLT (Crl.) 449 (SC), it should be held that the complainant has failed to discharge his initial burden that the accused had given Ex.P.1 cheque towards discharge of existing legally enforceable debt and held the accused is not guilty.

7. It is attacking the said findings, the present appeal is filed with the contentions in the grounds that the acquittal judgment of Trial Magistrate is contrary to law, that the Trial Magistrate erred in holding the complainant failed to discharge his initial burden that the accused has given Ex.P.1 cheque towards discharge of existing legal enforceable debt in spite of the legal position as contemplated under Section 139 of the N.I. Act, that the Court below ought to have noticed that the accused issued cheque dated 04.10.2006 for a sum of Rs. 1,49,623/- drawn on the State Bank of India, Markapur and therefore ought to have drawn presumption in favour of the complainant, that the Trial Magistrate erred in holding that the burden lies on the complainant to prove that there was a legal enforceable liability between the complainant and accused and the cheque was issued towards the discharge of the said liability, that the Court below ought to have disbelieved the unimaginable version of the accused that the complainant obtained his signature when he has taken the prize money in the chit transaction and later filed it with counter interest, that the Court below totally erred in acquitting the accused on the presumption that the burden lies on the complainant to prove that there was a legally enforceable debt in spite of the f