IMPORTANT POINT
The accused may rely upon circumstantial evidence for rebutting a presumption under Section 139.

S.S. Satheesachandran, J.— Complainant is the appellant. His complaint against the 1st respondent, hereinafter referred to as the ‘accused’, for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, the ‘N.I. Act’, after trial, ended in acquittal of the accused. Aggrieved by the judgment of acquittal, questioning its legality, propriety and correctness, he has preferred this appeal.

2. The case of the complainant is that the accused issued Ext P1 cheque for a sum of Rs. 3,50,000 towards discharge of a loan for the above sum, availed one month earlier, promising its encashment on presentation before the bank in due course. The cheque presented, was however, dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating the dishonour of the cheque and demanding the sum covered by the instrument was responded with Ex. P6 reply notice, raising untenable contentions. The complainant thereupon launched prosecution against the accused for the offence punishable under Section 138 of the N.I. Act.

3. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined himself as PW1 and got marked Exs. P1 to P6 to prove his case. The accused in his reply notice, Ex.P6, had contended that he had no transaction with the complainant but only with his son to whom he had given two cheques as security .He had further contended in the reply that one of the two cheques had been misused by the complainant in collusion with his son to set up a false case against him. During the cross-examination of the complainant, examined as PW1, the version presented in the reply notice was set up as the defence of the accused. When questioned under Section 313 of the Cr.P.C, he maintained his innocence. No defence evidence was adduced.

4. The learned Magistrate, after appreciating the materials produced, found the case of the complainant that he had a loan transaction with the accused and Ex.P1 cheque was issued towards discharge of the liability under that loan was not established, and to the contrary, the defence version that Ext P1 cheque had been given to the son of the complainant as security in respect of a loan transaction with him was more probable. In that view of the matter, the accused was found not guilty and acquitted of the indictment

5. I heard the counsel of both sides. The learned counsel for the complainant assailed the judgment of acquittal submitting that the learned Magistrate had misappreciated the facts, and evidence tendered in the case. It is the submission of the learned counsel that there was no denial of execution of Ex. P1 cheque by the accused but only a dispute as to having had no loan transaction with the complainant and issuing of Ex. P1 cheque to him towards discharge of a debt or liability .When execution of Ex. P1 cheque was not denied, but only the liability thereunder, and the cheque had been dishonoured due to insufficiency of funds in the account of the accused, according to the counsel, unless the contrary is proved, the complainant, payee under the cheque, is entitled to bank upon the presumption under Section 139 of the NI Act, that the cheque had been issued towards discharge in whole or in part of any debt or other liability of the drawer of that instrument. Complainant, who was examined as PW1, had sworn to his case alleged in complaint, and the accused other than raising a false defence disputing the loan transaction did not let in any counter evidence to rebut the presumption under Section 139 of the NI Act, submits the counsel. The learned Magistrate disbelieved the case of the complainant, according to the counsel, for the reason that he had not established by convincing evidence the loan transaction, which was disputed, relating to the issue of Ex. P1 cheque. No burden was cast upon the complainant in the given facts and circumstances of the case to prove the loan transact