1. This appeal is at the instance of the complainant in CC No.6 of 2003 on the file of Judicial First Class Magistrate Court - IV, Kozhikode, assailing the judgment of acquittal, in a complaint filed by him, under S.138 of the Negotiable Instruments Act (hereinafter referred as 'the NI Act).

2. The case of the complainant was that, towards discharge of a legally enforceable debt, accused issued a cheque for Rs.1,65,000/- to the complainant on 15/04/2002, drawn on Nedungadi Bank, Kalpetta Branch, assuring that it would be honoured on presentation before the bank. But that cheque was returned dishonoured for the reason 'funds insufficient'. In spite of receipt of lawyer notice, intimating dishonour of the cheque and demanding the cheque amount, he did not repay the amount, and hence the complaint.

3. On taking cognizance and on appearance of the accused before the trial court, particulars of offence was read over and explained, to which he pleaded not guilty and claimed to be tried. PW1 was examined and Exts.P1 to P7 were marked from the side of the complainant to prove her case. On closure of complainant's evidence, accused was questioned under S.313 of CrPC. He denied all the incriminating circumstances brought on record. No witnesses were examined from defence side, but Exts. D1 and D2 documents were marked.

4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court acquitted the accused, finding that there was no monetary transaction between the complainant and the accused, and the cheque issued by the accused was not towards any legally enforceable debt due from him. Aggrieved by the acquittal of the accused, the complainant preferred this appeal.

5. Heard learned counsel for the appellant / complainant and learned counsel for the 1st respondent / accused.

6. Learned counsel for the appellant would contend that the 1st respondent / accused was admitting issuance of Ext.P2 cheque, towards advance rent of the building owned by the complainant and his wife, taken on lease, by the wife of the accused, on the basis of Ext.D2 agreement. True that, the cheque was drawn by the accused taking over the liability of his wife. Accused was not disputing his signature or the amount mentioned in Ext.P2 cheque. The presumption available under S.118 and S.139 of the NI Act was also available to the complainant, to find that Ext.P2 cheque was issued towards discharge of a legally enforceable debt. Since the accused issued Ext.P2 cheque to the complainant, for the liability of his wife, on dishonour of that cheque for insufficient funds, it will attract the penal provision under S.138 of the NI Act. So according to him, the trial court went wrong in acquitting the accused, and hence the impugned judgment is liable to be set aside.

7. Learned counsel for the 1st respondent / accused contended that, though a lease agreement was executed, with respect to the building of the complainant, for running a hospital, by the wife of the accused, the complainant sold away that building, without handing over possession of that building, to the wife of accused. As a security for the lease agreement, a blank cheque was given by the accused to the complainant. After selling away that building, misusing the blank cheque received from the accused, complainant filed a false complaint against him.

8. Exts.D1 and D2 agreements will show that, building of the complainant was taken on lease, by the wife of the accused, for running a hospital. Ext.D1 agreement is dated 02/04/2001. It says that, the lease was for a period of 15 years, for an amount of Rs.27,000/- per month. Ext.D2 agreement is dated 09/10/2001. That agreement will show that, advance amount of Rs.1,65,000/- had to be paid before 15/04/2001 and cheque No.515604 was given as security, for its payment. In Ext.P7 reply notice sent by the accused, it is stated that, the cheque was issued by the accused, but it was not for presentation before the bank, as i