IMPORTANT POINT
Dishonour of cheque – Where accused has succeeded in rebutting statutory presumption under Section 139 of Negotiable Instruments Act, he has to be acquitted.

JUDGMENT

Gopinath P., J.—This appeal has been filed by the complainant in C.C No.1577 of 2003 on the file of the Judicial First Class Magistrate Court, Muvattupuzha challenging the acquittal of the 2nd respondent who was accused of an offence under Section 138 of the Negotiable Instruments Act. The complaint was filed alleging that the 2nd respondent herein had in the discharge of a debt, issued cheque No.327388 dated 30.12.2000 drawn on the Catholic Syrian Bank, Koothattukulam branch for a sum of Rs.1,70,000/- and on presentation, the said cheque was returned unpaid on the ground of insufficiency of funds in the account maintained by the 2nd respondent/accused. The complaint was filed after statutory notice and complying with all other formalities.

2. The appellant/complainant was examined as PW1 and Exts.P1 to P11 were marked. From the side of the 2nd respondent/accused, DW’s 1 to 3 were examined and D1 to D7 were marked.

3. The learned Magistrate, on a consideration of the matter found that the complainant had failed to prove his case and accordingly, acquitted the 2nd respondent/accused.

4. Sri.Peeyus A. Kottam, the learned counsel appearing for the appellant would submit that the circumstances which led to the finding that the complainant has not proved his case can be seen (in summary) from paragraph 21 of the impugned judgment. He submits that the finding of the learned Magistrate that cheque No.327388 was issued before 5.6.1995 at the time when the complainant had advanced a loan of Rs.40,000/- to the 2nd respondent/accused is incorrect. According to him, the circumstances taken into account by the learned Magistrate was that there was evidence to show that cheque bearing No.327387 was presented on 23.05.1995, cheque bearing No.327392 was presented on 10.06.1995, cheque bearing No.327393 was presented on 05.06.1995 and cheque bearing No.327397 was presented on 17.07.1995 and that the entire cheque book was exhausted on 07.02.1996. Further, a new cheque book was found to be issued on 29.03.1996 and the accused presented cheque leaf-bearing No.238249 (from the new cheque book) on 29.03.1996. The learned counsel for the appellant/complainant would submit that even according to the case put forth by the 2nd respondent/accused, a cheque bearing No.327387 was presented for encashment on 23.05.1995, whereas the date of the earlier loan admittedly availed by the accused from the complainant is 18.04.1995. From this, according to the learned counsel for the complainant, it is clear that the cheque bearing No.327388 (the subject cheque) could not have been issued for the loan availed on 18.04.1995. He would submit that the learned Magistrate went wrong in assuming that a new loan of Rs.1,70,000/- would not have been granted when the old loan was outstanding and that the amount of loan of Rs.1,70,000/- would not have been given in cash when the earlier loan of Rs.40,000/- was given by way of cheque. He submits that the learned Magistrate should have accepted the case of the complainant that the loan of Rs.1,70,000/- was given in personal capacity. He submits that there was no warrant for the learned Magistrate to assume that the cheque was a blank cheque given as security for the earlier loan. D2 and D3 documents do not, according to the learned counsel, go against the case of the Complainant. The learned counsel also contends that there was nothing illegal in giving a personal loan just because the business of the complainant is that of money lending. The learned counsel for the appellant would rely on the judgment of the Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106 to contend that the principle that the appellate court would be slow in setting aside a judgment of acquittal that two views are possible could not be applicable in the case of a prosecution under Section 138 of the Negotiable Instruments Act. He would further rely on the judgment of the Supreme Court in M. Abbas Haji v. T.N. C