THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1655 OF 2004 ORDER: This appeal is directed against the acquittal of the accused in C.C.No.124 of 2001 by the Additional Judicial First Class Magistrate, Gudivada on 05.02.2004. The appellant herein is the complainant. He has filed a private complaint against the 1st respondent/accused for the offence under Section 138 of Negotiable Instruments Act alleging that the respondent/accused borrowed an amount of Rs.45,000/- on 08.02.1998 for his business expenses and executed a promissory note agreeing to repay the same with interest at 24% per annum. Subsequently, on repeated demands accused issued a cheque on 08.08.2000 for Rs.72,000/- drawn on Union Bank of India, Tenali in favour of the complainant towards full and final settlement of the said pro-note debt. The complainant presented the said cheque into State Bank of India, Gudivada for collection on 30.08.2000 and the said cheque was returned with an endorsement “insufficient funds” and the same was returned to complainant on 12.09.2000 and the complainant got issued a registered notice on 18.09.2000 and the accused refused to receive the same and failed to sent any reply. Hence, he has filed the complaint under Section 138 of Negotiable Instruments Act. The accused has denied the offence under Section 138 Negotiable Instruments Act when he was examined under Section 251 Cr.P.C. by the lower Court. In order to establish the said charge, the complainant examined himself as P.W.1 and got marked Exs.P.1 to P.7. No oral and documentary evidence was adduced on behalf of the respondent/accused. The learned Magistrate by taking into consideration of the said oral and documentary evidence found that the complainant has failed to establish that there is legally enforceable debt at the time of issuance of the cheque by the accused, thereby found the accused not guilty for the said offence and acquitted the respondent/accused. Aggrieved by the said acquittal, the complainant has filed the present appeal. Now, the point that arises for consideration is: Whether the complainant could able to establish the offence under Section 138 Negotiable Instruments Act against the accused beyond reasonable doubt? P O I N T: The appellant’s counsel has pleaded that the lower Court has failed to consider that the respondent has not adduced any evidence to rebut the presumption available under Section 139 of Negotiable Instruments Act and wrongly put the burden on the complainant and erred in holding that there is no legally enforceable debt as on the date of issuance of cheque. He further pleaded that as the cheque was issued by the complainant/ accused towards repayment of the pro-note debt and as the said cheque was dishonoured, the accused is liable for punishment under Section 138 of Negotiable Instruments Act. The appellant’s counsel in support of his contention has relied upon a decision rendered in “K.N.Beena v. Muniyappan and another[1]”. Wherein the Apex Court held that in view of the provisions contained in Sections 118 and 139, the Court has to presume that the cheque had been issued for discharging a debt or liability. However, the said presumption could be rebutted by the accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant is not enough. Accused has to prove by cogent evidence that there is no debt or liability. In “B.V.Rangam, appellant v. B.Govinda Reddy and another, respondents[2]”, the Single Judge of this Court has held that the presumption under Section 139 of Negotiable Instruments Act can be drawn that the complainant had discharged his initial burden as to legally enforceable debt and the burden to prove that the said cheque was not issued against a legally enforceable debt lies with the accused. The appellant’s counsel has further relied upon a decision rendered in “Goa Plat (P) Limited v. Chico Ursula D’Souza”[3]. Wherein the Apex Court by considering the Sections 138, 139, 142 of Negotiable Instruments Act observed that the burden is on the accused to rebut the presumption available under Section 139 of Negotiable Instruments Act and taking into consideration of the facts of the particular case disagreed with the findings recorded by the lower Court by observing that both the Courts below have ignored the admission of the liability by the respondent who stated that the liability did exist but he was not responsible for it. While considering this, the Courts below treated the proof adduced by the respondent, namely, the letter denying liability and that some other person is liable for it, as sufficient to rebut the presumption under Section 139 of the Act. Thus, as per the above said decision, the burden is on the accused to rebut the presumption available under Section 139 of Negotiable Instruments Act. Now, it has to be examined whether the accused in the present case rebutted the presumption available to the complainant under Section 139 of Negotiable Instruments Act? Admittedly, in the present case, the respondent has not adduced any evidence even though he has taken a defence that the said cheque was not issued in discharge of legally enforceable debt. In “Krishna Janardhan Bhat v. Dattatraya G. Hegde[4]” the Apex Court has held that existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Therefore, in view of the above said decision merely because the respondent/accused has not entered into witness box and has not adduced any evidence on his behalf, it cannot be said that the respondent/accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act and the same has to be decided basing on the material available on record. In the present case, the complainant examined himself as P.W.1 and got marked Exs.P.1 to P.7. According to P.W.1, the accused borrowed an amount of Rs.45,000/- on 08.02.1998 for his business expenses and executed a promissory note agreeing to repay the same with interest at 24% per annum. Subsequently, on repeated demands accused issued a cheque on 08.08.2000 for Rs.72,000/- drawn on Union Bank of India, Tenali in favour of the complainant towards full and final settlement of the said pro-note debt. The complainant has presented the said cheque for collection in the bank, but the same was dishonoured by the bank with an endorsement “insufficient funds.” In order to establish that the said cheque was issued by the accused in discharge of legally enforceable debt, the complainant has relied upon Ex.P.1, certified copy of judgment in O.S.No.143 of 2001 on the file of Principal Junior Civil Judge, Tenali. As per the said judgment and decree the complainant has filed the suit for recovery of Rs.45,000/- from the Tadiparthi Madhusudhana Rao and the said suit was decreed exparte in his favour by the Principal Junior Civil Judge, Tenali. Therefore, from the above it is evident that the alleged promissory note dated 08.02.1998 was executed by Tadiparthi Madhusudhana Rao in favour of the complainant in his individual capacity, but whereas the impugned cheque dated 08.08.2000 was issued by the respondent Tirumala Traders, represented by its proprietor Tadiparthi Madhusudhana Rao. From the above evidence, it is evident that the said cheque was not issued by the respondent/accused for discharge of the amount due under the promissory note executed by Tadiparthi Madhusudhana Rao in his individual capacity. Thus, the respondent/accused has rebutted the presumption available to the complainant under Section 139 Negotiable Instruments Act. Thus, the burden shifts on the complainant to establish that the said cheque was issued for discharge of legally enforceable debt by the firm in his favour. Admittedly, there is no material on record to show that the said firm is due any amount to the complainant. As rightly observed by the lower Court, as per Ex.P.1 the said promissory note was executed by Tadiparthi Madhusudhana Rao in his individual capacity but not on behalf of the firm, but whereas the cheque was issued on behalf of the firm, as such there is no legally enforceable debt as on the date of issuance of cheque by the respondent. The said finding recorded by the lower Court does not warrant any interference by this Court in the appeal. Hence the appeal fails. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 27th December, 2011 Ksp [1] (2001) 8 Supreme Court Cases 458 [2] 2004 Crl.L.J. 3170 [3] (2004) 2 Supreme Court Cases 235 [4] AIR 2008 Supreme Court 1325