IMPORTANT POINT
Dishonour of cheque – Standard of proof, in order to rebut statutory presumption, can be inferred from materials on record and circumstantial evidence.

JUDGMENT

This appeal by the complainant is against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I Act’ for short).

2. As per the complaint towards discharge of a debt, the accused issued a cheque dated 19.12.2005 for Rs.1,00,000/- to the complainant. When the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount to the complainant.

3. Before the trial court, from the side of the complainant, PW1 examined and Exhibits P1 to P7 were marked and from the side of the accused, DW1 examined and Exts.D1 and D2 were marked.

4. After considering the oral and documentary evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act against the accused and hence, the accused was acquitted.

5. Heard Sri.Abraham.J.Kaniyampady, the learned counsel representing the appellant on record, Sri.Ranjan Suresh, the learned State Brief representing the first respondent/accused and Sri.Alex M.Thombra, the learned Senior Public Prosecutor for the second respondent.

6. The learned counsel for the appellant argued that the accused has not disputed the signature in Exhibit P1 cheque and the findings in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant is not legally sustainable.

7. The learned State Brief representing the accused/first respondent argued that the complainant has not disclosed the alleged date of execution and issuance of the cheque in the complaint or in the chief affidavit of PW1 and that the evidence of PW1 in cross examination regarding the alleged transaction does not tally with the averments in the complaint. It is also argued that no document is produced to show that the person, who signed the complaint as Managing Partner of the complainant Poornima Finance has authority to represent the complainant.

8. A perusal of Ext.P1 cheque shows that the payee is M/s.Poornima Finance. Even though PW1 claimed that he is the Managing Partner, no document is produced to prove the same. In cross examination, PW1 stated that his wife and daughter are the other partners of the firm and that he will produce the documents in this connection. But no such document is seen produced in this case. PW1 further admitted that he is also conducting Poornima Jewellery. According to PW1, the amount was borrowed as per promissory note on 03-10-2005 by the accused along with her father and brother. PW1 would say that the accused executed and issued the cheque on 19-12-2005 and that he returned the promissory note to the accused at that time. But immediately PW1 corrected himself by saying that the promissory note was not returned to the accused.

9. PW1 further stated in cross examination that the accused purchased gold ornaments from the Jewellery and that Ext.D1 dated 15-04-2005 is the estimate in that connection. He also admitted that Ext.D2 account slip regarding the purchase of gold ornaments by the accused is in his handwriting.

10. DW1 is the father of the accused and he deposed that on 15-04-2005, he purchased gold ornaments from the complainant’s Jewellery for Rs.1,56,208/-. According to DW1, he paid Rs.20,000/- and for the balance amount he handed over a blank cheque of the accused. DW1 stated that the marriage of the accused was on 17-04-2005 and that subsequently he paid Rs.40,000/- and old gold ornaments worth Rs.34,000/-. In cross examination, DW1 stated that it is not known to him whether the complainant is conducting finance business. But according to DW1, he has not borrowed any amount from the complainant.

11. In M.S. Narayana Menon v. State of Kerala [(2006) 6 SCC 39], the Hon’ble Supreme Court considered the nature of the standard of proof for rebutting the presumpt