THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1621 of 2004 JUDGMENT: This appeal is directed against the acquittal of the accused for the offence under Section 138 of the Negotiable Instruments Act (for short, the NI Act). The appellant herein is the complainant and he has filed the complaint against the respondents 1 and 2 for an offence under Section 138 of the NI Act, alleging that A1 is a proprietary concern represented by A2 and the accused indebted to the complainant an amount of Rs.2,00,000/- and the accused had issued four post-dated cheques each for Rs.50,000/- towards repayment of the said debt drawn on Charminar Cooperative Urban Bank Limited, Masab Tank Branch, Hyderabad. The cheque bearing No.059271 for Rs.50,000/- was cleared on 29.09.2000, and when the complainant presented the cheque bearing No.059273 dated 10.02.2001 for Rs.50,000/- in the State Bank of Mysore, Abids Branch, it was dishonoured for want of sufficient funds. Thereafter, the complainant got issued legal notice on 04.06.2001 by registered post calling upon the accused to pay the amount due under the dishonoured cheque within 15 days. The said legal notice was returned by the accused with an endorsement as ‘not claimed’. As the accused failed to repay the amount within the stipulated time, he filed a complaint under Section 138 of the NI Act. The accused has denied the offence under Section 138 of the NI Act when he was examined under Section 251 Cr.P.C. by the lower Court. In order to establish the offence, the complainant examined himself as PW1 and got marked Exs.P1 to P7. The accused examined himself as DW1 and no document was marked on his behalf. Taking into consideration the said oral and documentary evidence, the learned Magistrate has found the accused not guilty for the offence under Section 138 of the NI Act and, thereby, acquitted him. Aggrieved by the acquittal, the complainant filed the present appeal. When the matter came up for hearing on 21.10.2011, 04.11.2011, there was no representation on behalf of the appellant. Even though the matter is posted to today ‘for judgment’, there is no representation on behalf of the appellant. Therefore, the matter is being disposed of basing on the material available on record. According to the complainant, the accused has indebted an amount of Rs.2,00,000/- to the complainant and, in discharge of the said debt, the accused issued four post-dated cheques bearing numbers 059271 and 059273, for Rs.50,000/- each, out of which the cheque bearing No.059271 was cleared on 29.09.2000. Subsequently, three cheques in Ex.P1 were presented and they were returned for want of sufficient funds. Under Section 138 of the NI Act, when a cheque is issued, it shall be presumed that the cheque is issued in discharge of whole or part of any debt or other liability. But the said presumption is a rebuttable presumption. In the present case, the respondents have not disputed about the signature on Ex.P1, but according to them, the accused stood as surety to PW1 for two chits in Model Chit Fund and Margadarshi Chit Fund, and PW1 became defaulter. Therefore, Model Corporation Limited filed a civil suit for recovery of Rs.7,00,000/- and Margadarshi Chit Fund Limited filed a suit for recovery of Rs.5,12,000/-, on the accused as he was the guarantor for PW1. At that time, PW1 approached the accused with a request to give four cheques to him in order to give the same to the chit fund companies. Therefore, according to the accused, four cheques were issued as loan to PW1 for repayment of the amount due to the chit fund companies, but not to repay any amount payable to PW1. DW1 in his evidence has stated the same facts as mentioned above. When the accused pleaded that he has issued the cheque as loan to PW1, the burden is on PW1 to establish that the said cheque was issued for repayment of amount to PW1, in discharge of a legally enforceable debt. In the present case, PW1 stated that A1 and A2 are indebted to him to the tune of Rs.2,00,000/- and he has never stated about the nature of indebtedness of the accused. Moreover, he admitted that the said amount is not a commercial transaction. Admittedly, A1 is a proprietary concern and A2 is its proprietor. A2 has not issued cheque in his individual capacity but on behalf of A1. When there is no commercial transaction between PW1 and A1 and when PW1 could not able to say how the accused is indebted to him to the tune of Rs.2,00,000/-, it cannot be presumed that Ex.P1 cheque was issued for repayment of a legally enforceable debt. Thus, the lower Court has rightly observed that the complainant- PW1 failed to establish that accused issued Ex.P1 in discharge of a legally enforceable debt, and the accused could able to rebut the presumption available under Section 139 of the NI Act. Thus the finding recorded by the lower Court, that the complainant failed to prove the offence under Section 138 of the NI Act, does not warrant any interference of this Court in this appeal. In the result, the appeal is dismissed. _____________________________ JUSTICE P. DURGA PRASAD 11th November, 2011 KSM