ORDER : This Criminal Appeal is filed on behalf of the appellant, under Section 378(4) of the Code of Criminal Procedure, 1972 (for short, ‘the Cr.P.C’), against the acquittal of the accused/second respondent questioning the judgment, dated 13.06.2007 in C.C. No.690 of 2006 on the file of the Court of II Additional Chief Metropolitan Magistrate, Visakhapatnam (for short, ‘the learned Magistrate’). The present appellant is the complainant on the allegations of dishonour of cheque before the trial Court. 2. The case of the prosecution, in brief, before the trial Court, as per the complaint filed by the complainant under Section 190 Cr.P.C., is as follows : The complainant and the accused are known to each other since long time. Accused took a hand loan of Rs.70,000/- from the complainant to incur her family expenses prior to 10.12.2005 and she issued a cheque for Rs.70,000/- in favour of the complainant towards payment of the debt amount. The cheque was dated 10.12.2005 drawn on State Bank of India, Maharanipeta Branch, Visakhapatnam. The complainant presented the cheque thrice on 10.12.2005, 18.02.2006 and 27.04.2006. In all those occasions, it was returned as ‘funds insufficient’ and lastly ‘payment stopped by drawer’. Therefore, the complainant got issued a notice on 29.04.2006 demanding the cheque amount and the accused got issued a reply with false allegations. Hence, the complaint. 3. The Court below took the case on file under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). On appearance of the accused before the Court below, copies of case documents were furnished as required and further the accused was examined under Section 251 Cr.P.C. for which she denied the allegations, pleaded not guilty and claimed to be tried. 4. During course of trial on behalf of the complainant PW.1 was examined and Exs.P-1 to P-7 were marked. After closure of the evidence of the complainant, accused was examined under Section 313 Cr.P.C. with regard to incriminating circumstances against her in the evidence and she denied the same. She examined herself as DW.1 and one Ch. Durga Rao as DW.2 and got marked Exs.D-1 to D-7. 5. The learned Magistrate, on hearing both sides and on considering the oral as well as documentary evidence on record, found the accused not guilty of the offence under Section 138 of the NI Act and acquitted her under Section 255(1) Cr.P.C. 6. Durga Rao as DW.2 and got marked Exs.D-1 to D-7. 5. The learned Magistrate, on hearing both sides and on considering the oral as well as documentary evidence on record, found the accused not guilty of the offence under Section 138 of the NI Act and acquitted her under Section 255(1) Cr.P.C. 6. Aggrieved by the same, the unsuccessful complainant in C.C. No.690 of 2006 before the Court below filed the present Appeal challenging the judgment of the trial Court. 7. Now, in deciding this Appeal, against the acquittal, the points that arise for consideration are : (1) Whether the complainant was able to prove before the learned Magistrate that Ex.P-1-cheque was issued to discharge the legally enforceable debt that was existing between the complainant and the accused and whether such complainant proved the offence alleged for the offence under Section 138 of the NI Act against the accused beyond reasonable doubt? (2) Whether the judgment of acquittal in C.C. No.690 of 2006, dated 13.06.2007, by the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam is sustainable under law and facts in the circumstances? 8. Learned counsel appearing for the appellant would contend that the Court below passed a lengthy judgment without proper reasons. There was no dispute about the signature of the accused on the cheque and in such a case it was for the accused to explain as to how she issued a cheque. The accused did not at all explain and there was a presumption under Section 118 of the NI Act that it was supported by consideration. The trial Court did not look into the deposition of accused properly, where she admitted that she took hand loan several times from the wife of the complainant and admitted the issuance of a cheque and promissory note. The trial Court did not consider all these aspects erroneously. The trial Court instead of saying that the accused issued a cheque to the complainant, acquitted the accused. The trial Court ought to have held that if the document was fabricated, accused would have sent it for expert opinion. The observations made by the trial Court that the complainant did not proceed in instituting the suit and except filing the complaint is not sustainable under law. The trial Court ought to have held that if the document was fabricated, accused would have sent it for expert opinion. The observations made by the trial Court that the complainant did not proceed in instituting the suit and except filing the complaint is not sustainable under law. The trial Court made erroneous observations as if the accused is working in a Nationalized Bank etc., Learned counsel for the appellant would rely upon a decision of the Hon’ble Supreme Court in Triyambak S. Hegde v. Sripad, 2022 (1) SCC 742 . 9. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, appearing for the first respondent, would submit that he is only a formal party. 10. It is brought to the notice of the Court that though notice was served to the second respondent/accused, neither she did choose to appear nor anybody made appearance on her behalf. 11. POINT Nos.1 & 2: To prove the case against the accused, the complainant got himself examined as PW.1 and Exs.P-1 to P-7 were marked. The accused got examined herself as DW.1 and further examined DW.2 and got marked Exs.D-1 to D-7. The substance of the chief-examination affidavit filed by PW.1 before the trial Court was that the accused had taken a hand loan of Rs.70,000/- from him prior to 10.12.2005 for her family expenses. She agreed to repay the entire loan amount but did not do so. Ultimately, on several demands, the accused issued a cheque for Rs.70,000/- towards full settlement of the debt amount under cheque No.619560, dated 10.12.2005. On the same day, he presented it for collection in State Bank of India, Maharanipeta Branch, Visakhapatnam, which was returned as ‘funds insufficient’. Again he presented it on 18.02.2006. Again, he presented it on 27.04.2006 which was returned. Then he got issued a legal notice to the accused on 29.04.2006 demanding to pay the amount under the bounced cheque for which accused got issued reply notice on 06.05.2006 with false allegations. Hence, he filed complaint. According to PW.1, Ex.P-1 is the cheque, dated 10.12.2005. Ex.P-2 is the cheque return memo dated 12.12.2005. Ex.P-3 is the cheque return memo dated 20.02.2006. Ex.P-4 is the cheque return memo dated 07.04.2006, Ex.P-5 is the office copy of legal notice dated 29.04.2006. Ex.P-6 is the reply notice dated 06.05.2006 and Ex.P-7 is the postal acknowledgment. 12. According to PW.1, Ex.P-1 is the cheque, dated 10.12.2005. Ex.P-2 is the cheque return memo dated 12.12.2005. Ex.P-3 is the cheque return memo dated 20.02.2006. Ex.P-4 is the cheque return memo dated 07.04.2006, Ex.P-5 is the office copy of legal notice dated 29.04.2006. Ex.P-6 is the reply notice dated 06.05.2006 and Ex.P-7 is the postal acknowledgment. 12. Turning to the evidence of DW.1, who is no other than the accused, her deposition in substance is that she did not borrow Rs.70,000/- prior to 10.12.2005 from the complainant and did not issue any cheque on the said date. She borrowed Rs.5,000/- from Pydithallamma, the complainant’s wife. She again borrowed Rs.2,000/- and again borrowed Rs.3,000/- and so issued a cheque for Rs.10,000/-. She borrowed the said three amounts within a period of one week. Wife of complainant obtained promissory note which was blank and it is Ex.D-1, which was returned. She paid Rs.13,000/- in total towards discharge of the debt and the wife of the complainant did not return the cheque but only returned the blank promissory note. Ex.D-2 is the endorsement. Ex.D-3 is the office copy of legal notice dated 02.03.2006 issued by her. She also issued a notice to the complainant on 29.04.2006, which is Ex.D-4. Postal acknowledgment is Ex.D-5. Returned registered envelope is Ex.D-6. She also issued a notice to Chittiboina Durgarao and the acknowledgment is marked as Ex.D-7. So, she never borrowed the amount as stated by the complainant. 13. DW.2 deposed that he was present when the wife of the complainant returned the blank promissory note to the accused on paying the amount of Rs.13,000/-. 14. Now, this Court would like to scrutinize the case of the complainant and the evidence adduced to ascertain as to whether evidence on record proved the offence alleged. At the outset, this Court would like to make it clear that the case of the complainant is so specific that he did not furnish the date of borrowing of Rs.70,000/- by the accused prior to 10.12.2005. According to him, accused borrowed the said amount as hand loan prior to 10.12.2005. In the light of the language employed in proviso to Section 138 of the NI Act, the complainant should be able to prove that the cheque is issued for enforcement of legally enforceable debt. According to him, accused borrowed the said amount as hand loan prior to 10.12.2005. In the light of the language employed in proviso to Section 138 of the NI Act, the complainant should be able to prove that the cheque is issued for enforcement of legally enforceable debt. It is the bounden duty of the complainant to plead and prove the date of lending of Rs.70,000/- by him to the accused. So, the pleadings are bereft of necessary details. This aspect assumes importance for the reason that when the complainant pleaded that accused borrowed Rs.70,000/- prior to 10.12.2005, there is no hard and fast rule that the accused borrowed the amount within three years only prior to 10.12.2005. Suppose, if the borrowing of the said amount was more than three years prior to 10.12.2005, the above borrowing of debt is not legally enforceable on account of the provisions under the Limitation Act, 1963. So, in view of the above, the complainant was supposed to state the lending of Rs.70,000/- by him to the accused, for which there was no foundation laid in the complaint. Now, turning to the cross-examination part of PW.1, the complainant had destroyed his own case to any extent throwing inherent improbabilities in his case. During the course of cross-examination, he deposed that accused borrowed Rs.70,000/- from him on 10.12.2005. Accused brought a cheque to his house, signed it and borrowed money. The accused and her husband Kakkala Mahalakshmi together came to his house. He does not know whether the accused got issued notice to his wife Pytithallamma. He denied that he received Rs.10,000/- towards principal and Rs.3,000/- towards interest from the accused on 24.08.2005 in respect of the amount borrowed from his wife by the accused. By virtue of the answers spoken by PW.1, during cross-examination, the case setup by the complainant that the accused borrowed Rs.70,000/- from him prior to 10.12.2005 was totally negatived. So, it is clear that the answers spoken by PW.1, during the course of cross-examination, does not reconcile with his chief-examination affidavit in which he deposed that the accused borrowed Rs.70,000/- prior to 10.12.2005 and further does not tally with the averments in the complaint. The averments in the chief-affidavit and complaint are consistent but answers spoken by PW.1 during his cross-examination destroyed the case of the complainant. 15. The averments in the chief-affidavit and complaint are consistent but answers spoken by PW.1 during his cross-examination destroyed the case of the complainant. 15. In the light of the answers spoken by PW.1, during cross-examination, another improbability which is necessarily to be pointed out here at this juncture is that it is his case that on 10.12.2005 itself he presented the cheque in the bank. So when his evidence in cross-examination is that on 10.12.2005 accused borrowed Rs.70,000/- and issued a cheque it is rather an improbable act on the part of the complainant to present the cheque on the same day. It is not a post dated cheque. So, the answers spoken by PW.1 in his cross-examination are nothing but improbable and incredible. So, for obvious reasons, complainant, contrary to the averments in the complaint deposed, destroyed his case to any extent. 16. Turning to the contention of learned counsel for the appellant that the burden is on the accused to rebut the presumption under Section 138 of the NI Act, as accused admitted her signature on Ex.P-1, this Court would like to make it clear that, literally, there is no such admission appearing from the record. The defence of the accused, at the time of cross-examination of PW.1, is that accused got issued a notice under Ex.D-3 to the wife of the complainant alleging that she borrowed Rs.10,000/- from the wife of the complainant, who took blank signed promissory note and cheque bearing No.625910 and accused repaid the entire amount on 24.08.2005 with interest and wife of the complainant returned only the blank promissory note and she did not return the cheque informing that it was misplaced and the Manager of State Bank of India informed the accused that one cheque bearing No.625160 came for encashment and it was drawn on the accused account. With the said allegations accused sent a notice under Ex.D-3. It is to be noticed that, according to the complainant, he presented Ex.P-1 before the bank on three occasions and it was dishonoured. The dates were 10.12.2005, 18.02.2006 and 27.04.2006. As seen from the said notice, what the accused admitted is that the cheque bearing No.625910 bears her signature. Further, accused came to know that another cheque bearing No.625160 was also presented in the bank. Those two cheques have nothing to do with Ex.P-1. The dates were 10.12.2005, 18.02.2006 and 27.04.2006. As seen from the said notice, what the accused admitted is that the cheque bearing No.625910 bears her signature. Further, accused came to know that another cheque bearing No.625160 was also presented in the bank. Those two cheques have nothing to do with Ex.P-1. So, accused admitted her signatures only on the cheques bearing No.625910 and 619560. So, Ex.D-3 notice issued by the accused never shown the admissions made by the accused as regards the cheque in question. Even otherwise, when the complainant had knowledge that on 10.12.2005 and 18.02.2006 the cheque issued by the accused was dishonoured and when the wife of the complainant was residing with the complainant, who received Ex.D-3 with serious allegations, definitely he would have advised his wife to issue a proper reply. The knowledge of Ex.D-3 can be attributed to the complainant. So, it is a case where the complainant or his wife could not respond by issuing a suitable reply to the accused when they received Ex.D-3. On the other hand, when the complainant issued legal notice after the alleged dishonour under the cover of Ex.P-5, accused got issued Ex.P-6 legal notice referring about the issuance of Ex.D-3 also. Apart from this, accused also issued a notice under Ex.D-4 reiterating the contents in Ex.D-3. So, insofar as the contents of Ex.D-3 are concerned, accused did not admit her signature on Ex.P-1. However, it is a fact that during the course of cross-examination of PW.1, accused did not deny the signature on Ex.P-1 by impeaching his testimony in any way. Now, this Court has to see whether non-denial of the signature of the accused at the time of cross-examination of PW.1 would enable the complainant to claim presumption under Section 118 of the NI Act. 17. This Court would like to make it clear that, as pointed out, the complainant destroyed his own case by stating in cross-examination that he lent the amount to the complainant on 10.12.2005. So, the case of the complainant that accused borrowed the said amount from him prior to 10.12.2005 shall stand collapsed. The answers spoken by PW.1, during the cross-examination, are inherently improbable. So the accused could displace the presumption under Section 118 of the NI Act by virtue of the preponderance of probabilities. 18. This Court has looked into the decision of the Hon’ble Supreme Court in Triyambak Hegde (supra). The answers spoken by PW.1, during the cross-examination, are inherently improbable. So the accused could displace the presumption under Section 118 of the NI Act by virtue of the preponderance of probabilities. 18. This Court has looked into the decision of the Hon’ble Supreme Court in Triyambak Hegde (supra). It is a case where the Hon’ble Supreme Court, having regard to the facts and circumstances, held that when the signature on the cheque was admitted a presumption shall be raised under Section 139 of the NI Act that the cheque was issued to discharge of debt or liability. 19. Now, coming to the present case on hand, the complainant did not explain that lending of Rs.70,000/- by him prior to 10.12.2005 was for a legally enforceable debt and as such debt was within three years prior to 10.12.2005 and on the other hand complainant destroyed his case by stating that he lent the amount on 10.12.2005 to the accused for which she issued Ex.P-1. Ex.P-1 is not a post dated cheque. The claim of the complainant is that, on 10.12.2005, he presented the cheque for collection. Such an act on the part of the complainant is inherently improbable. One cannot lend any amount to others, take a cheque and present the same in the bank on the very same day. So, virtually the complainant cannot claim that his case is strengthened by Section 118 of the NI Act, in this case, in the light of the peculiar facts and circumstances and such presumption is not at all there in favour of the complainant as it is displaced by virtue of his pleadings as well as answers spoken in his cross-examination. 20. Though, the accused was not able to establish her defence that Ex.D-1, the blank promissory note was returned by the wife of the complainant after she repaid Rs.13,000/- and though the evidence of DW.2 as if he was present at that time is not convincing but in a prosecution under Section 138 of the NI Act, complainant should stand on its own legs. Viewing from any angle, I am of the considered view that complainant miserably failed before the trial Court to prove that accused borrowed a sum of Rs.70,000/- from him prior to 10.12.2005 and issued the cheque towards legally enforceable debt as such the complainant failed to prove the offence under Section 138 of the NI Act. Viewing from any angle, I am of the considered view that complainant miserably failed before the trial Court to prove that accused borrowed a sum of Rs.70,000/- from him prior to 10.12.2005 and issued the cheque towards legally enforceable debt as such the complainant failed to prove the offence under Section 138 of the NI Act. Learned Magistrate rightly appreciated the evidence on record and recorded sound reasons. Absolutely the Appeal filed by the appellant/complainant is devoid of merits as such it is fit to be dismissed. 21. In the result, the Criminal Appeal is dismissed. Consequently, Miscellaneous Applications pending, if any, shall stand closed.