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M.R.HARIHARAN NAIR
Joseph Jose – Appellant
Versus
J. Baby – Respondent
Key Points:- [6000031500008] The endorsement "unclaimed" can be taken as refusal and suffices for compliance with Section 138(b) of the NI Act; burden to prove non-tender of the article is on the accused.[6000031500008]- [6000031500009] Under Section 118(a), there is a presumption that the cheque was issued for consideration and on the date; under Section 139, there is a presumption that the cheque was issued to discharge debt or liability in the absence of contrary evidence; acquittal unjustified.[6000031500009]- (!) The main issues are whether the complainant established the offence under Section 138 NI Act and related reliefs. (!) - (!) The complainant provided evidence of dishonour, notice, and return with endorsement; argued that non-tender burden lay on accused.[6000031500008]- [6000031500010] The impugned judgment is set aside and remitted for fresh judgment.[6000031500010]- (!) The challenge concerns acquittal of the accused in a complaint alleging offence under Section 138 NI Act. (!) - [6000031500001] Details of loan, cheque date, dishonour, and notice given.[6000031500001]- [6000031500007] The complainant need not allege full transaction details; essential is issuance of cheque to discharge debt or liability.[6000031500007]- [6000031500004] Points for decision include whether the complainant established the offence and reliefs.[6000031500004]
M. R. Hariharn Nair, J. : The challenge in the appeal is with regard to the acquittal of the accused in the complaint filed by the appellant alleging offence under Section 138 of N.I. Act against the first respondent herein.
2. The complainant alleged that on receipt of a sum of Rs. 85,000/- from him as loan, the first respondent issued Ext. P1 cheque on 3.9.1996; that the cheque, on presentation, was dishonoured for want of funds vide Exts. P2 and P3; that he sent Ext. P4 notice intimating the dishonour and demanding payment and that Ext. P5 is the envelope whereby the notice was returned. He also stated in his evidence as PW 1 that Ext. P5 was returned without acceptance deliberately and that the complainant had even intimated the fact of dishonour of the cheque to the accused in person.
3. According to the learned Counsel for the appellant the acquittal of the accused as per impugned judgment is for trivial and untenable reasons.
4. According to the respondent, as long as the postman remains unexamined, refusal to accept Ext. P4 notice cannot be inferred. He would urge that the burden in the matter lay with the complainant.
5. On the arguments advanced in the case, the
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