1. The appellant, the complainant in C.C.No.145/1998 on the file of Additional Chief Judicial Magistrate(Economic Offence), Ernakulam, filed this appeal challenging the order of acquittal of the respondent for the offence under Section 138 of the Negotiable Instruments Act in this appeal. The case of the appellant in the complaint filed before the learned Magistrate was that for different purposes the respondent borrowed a total sum of Rs.1,50,000/- and though she promised to repay the amount after bidding two Kuries subscribed by her, positively by February, 1997, it was not paid. The appellant met the respondent and demanded the money on 20-02-1997. The respondent came to the office of the appellant and disclosed that she could not get the Kuri as she is defaulter and demanded Rs.25,000/- more so that she can bid the Kuri. Believing the words, appellant advanced Rs.25,000/-. Though he demanded the amount, she failed to repay the amount. Finally, the respondent issued Ext.P1 cheque dated 02-10-1997 for Rs.1,50,000/- drawn in her account maintained in the Fort Kochi Branch of Canara Bank. The cheque, when presented for encashment, was dishonoured. In spite of notice demanding the amount received by the respondent, she did not pay the amount and thereby committed the offence. The appellant has stated that respondent originally borrowed Rs.35,000/- on 14-09-1996 and thereafter Rs.40,000/- to send her younger sister to Gulf and then Rs.50,000/- for getting a house on mortgage.

2. The respondent pleaded not guilty. The appellant was examined as PW1. A witness was examined on the side of the respondent as DW1. Exts.P1 to P6 were marked. The learned Magistrate on the evidence found that appellant did not establish that respondent had borrowed Rs.1,50,000/-in four instalments as claimed by him and issued Ext.P1 cheque towards its repayment.

3. The argument of the learned counsel is that the learned Magistrate did not properly appreciate the case. It is argued that the respondent is admitting the signature in Ext.P1 cheque and also admitted that she had borrowed amount and issued Ext.P1 cheque. According to the learned counsel, in such circumstances the learned Magistrate is bound to draw the presumption available under Sections 118 and 139 of the Negotiable Instruments Act and as the respondent was not examined, and the evidence of DW1 do not establish that the amount borrowed was not Rs.30,000/-as claimed by the respondent, and the evidence of the appellant as PW1 should have been accepted and it should have been found that Ext.P1 cheque was issued in discharge of the debt of Rs.1,50,000/-.

4. The complaint does not disclose that there was any intention on the part of the appellant to purchase the property of the respondent. A reading of the complaint shows that the alleged transaction was a pure and simple money transaction. What is alleged in the complaint is that the respondent approached the appellant on 14-09-1996 and borrowed Rs.35,000/- to pay off the loan availed by mortgaging her family property before the Greater Cochin Development Authority. The further case is that to send the sister of the respondent, she again borrowed Rs.40,000/-. Thereafter, the respondent again borrowed Rs.50,000/- for getting a house on mortgage. All these payments were made by the appellant on the promise of the respondent that she will pay the amount on getting two Kuries by February, 1997. The complaint proceeds that thereafter in February, 1997, the appellant demanded the amount. Then, the respondent disclosed that she could not bid the Kuries as she was a defaulter and asked for a further amount of Rs.25,000/-, so that she can pay the defaulted subscriptions and thereafter bid the Kuries. It is in such circumstances the appellant would say he advanced a further sum of Rs.25,000/- and finally for repayment of the entire amount, Ext.P1 cheque was issued.

5. When the appellant was examined as PW1, the case has been changed. As per the