( 1 ) CHALLENGING the judgment of acquittal dated 18-07-2002 passed in C. C. No. 60 of 2001 on the file of the Judicial Magistrate of first Class, Special Mobile Court, Srikakulam whereunderthe first respondent/accused was acquitted of the offence punishable under section 138 of the Negotiable Instruments act, 1881, the present Criminal Appeal is preferred under Section 378 (4) Cr. P. C. by the appellant/complainant.

( 2 ) THE case of the complainant, in brief, may be stated as follows: the accused is a civil and mechanical contractor and he is managing partner of m/s. Jaimenee Engineers. In pursuanceof an oral agreement entered into by the accused with thecomplainantforsupplying construction building material at Nalco, Damanjodi, the complainant supplied 40 and 20 mm chips, boulders and bricks and raised bill for rs. 11,08,110/- and the same was passed by one S. P. Patnaik, site in-charge. The accused gave a cheque bearing no. 782768 dated 22-11 -1999 for Rs. 10,50,000/- of State Bank of India, Damanjodi branch and the same was presented on 14-12-1999, but it was returned with endorsement 'payment stopped by the drawer'. The complainant got issued the statutory notice on 22-12-1999 to accused, who received the same and sent reply on 29-12-1999 and did not pay theamount. Hence, the complaint.

( 3 ) TO substantiate the case of complainant, two witnesses P. Ws. 1 and 2 were examined and 515 documents Exs. P. 1 to P. 515 were marked. On behalf of accused, nooral evidence was examined, but 5 documents Exs. D-1 to d-5 were marked.

( 4 ) THE trial Court while observing that signature on the cheque was not disputed by the accused, acquitted the accused holding that the complainant failed to prove that he supplied the construction material and the cheque was not given for discharge of legally enforceable liability. Challenging the same, the present appeal is preferred by the complainant.

( 5 ) THE learned counsel for the appellant contended that issuance of Ex. P. 2-Cheque is not denied or disputed by the accused; that the site in-charge of the accused signed on exs. P. 10to P. 514-tripsheets of different dates and therefore presumption under Section 139 of the Negotiable Instruments Act, 1881 can be drawn; that under total misconception of law, the trial Court placed burden on the complainant though the initial burden of the complainant was discharged by adducing necessary evidence. Hence, he prayed to set aside the impugned judgment.

( 6 ) NONE appeared for the first respondent. Perused the evidence on record.

( 7 ) P. W. 1 who is complainant, stated that he supplied building material of sand, 20 and 40 mm chips, boulders and bricks during june, 1998 to October, 1998 and therefore the accused is found liable to a tune of rs. 11,08,110/- and Ex. P. 1 is copy of document of the bill for supply of construction materials, which was signed by S. P. Patnaik; for that amount, the accused issued Ex. P. 2-cheque for Rs. 11,50,000/- of State Bank of India, Dhamnjodi branch, Orissa; when the cheque was presented on 14-12-1999, it was returned with Ex. P. 3-memo dated 14-12-1999; he sent a notice under Ex. P. 4-postal receipt for which Ex. P. S-reply was givenon 29-12-1999. It is not denied ordisputed before this Court that the accused belongs to Gujarat State and he is a contractor in Nalco, Damanjodi. It is also an admitted fact that the accused used to pay bill amounts monthly for some time, and several cheques issued by the accused in the year 1998 were honoured. He also stated that one S. P. Patnaik is the Site in-charge of the accused. The said fact is not denied or disputed. Except suggesting that the complainant has not supplied construction material and the accused did not give Ex. P. 2-cheque and that P. W. 1 committed theft of ex. P. 2-cheque in his absence, nothing has been elicited to discredit testimony of P. W. 1. So, from the evidence of P. W. 1 and Exs. P. 10 to P. 514, it is established beyond doubt that he supplied buil

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