The failure to mention transaction particulars in the complaint and notice, lack of evidence of cheque execution, and non-production of account books by the appellant justified the acquittal of the accused.

The appellant is a private limited company. It filed a complaint against the second respondent alleging that he committed the offence under Section 138 of the Negotiable Instruments Act. The learned magistrate convicted him of the offence and sentenced him to undergo simple imprisonment for three months and pay a fine of Rs.55,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. In the appeal the learned Sessions Judge set aside the order of conviction and the sentence and acquitted the second respondent. This is challenged in this appeal.

2. Heard the learned counsel for the appellant. Though the second respondent was served with notice, he has not entered appearance.

3. In the complaint filed by the appellant, the allegation was this:

“Towards the discharge of the debit to the tune of Rs. 50,000/- the accused issued his cheque bearing No. 744422 dated 14.6.2001, for Rs. 50,000/- of State Bank of Travancore, Kaduthuruthy Branch to the complainant.”

The cheque was dishonoured by the bank since there was no sufficient fund in the account of the second respondent. In spite of the demand by notice, he did not pay the amount and thus, he committed the offence mentioned above.

4. Before the complaint was filed, the appellant had issued Ext.P7 notice demanding payment of the amount covered by the cheque, which was marked as Ext.P4. In the notice the date or the nature of the transaction which allegedly gave rise to the liability was not disclosed. Those particulars are not mentioned even in the complaint. Only in the examination in chief of PW1, who was examined on behalf of the appellant, it was disclosed that the liability arose from some business transactions the second respondent had with the appellant. There is no reason for the omission of the appellant to mention the date or the nature of the transaction in the notice or in the complaint. This is usually a trick played by dishonest litigants to see that justice is denied to the accused. The decision of the Supreme Court in Vijay v. Laxman, 2013 (3) SCC 86 is an authority to hold that the failure to mention those particulars in the complaint is sufficient to acquit the accused.

5. In the examination of PW1, he did not even claim that he saw the second respondent executing Ext.P4 cheque. In fact, there is no evidence to prove that the second respondent executed the cheque. But, in the cross-examination of PW1, it was suggested that Ext.P4 was a signed blank cheque leaf given to one Alex Kuruvila in connection with some transactions between the second respondent and him. That alone is not sufficient to hold that execution of the cheque has been proved. The second respondent is not supposed to disprove what the appellant has failed to prove. On this ground also, the acquittal can be justified.

6. The case put forward by PW1 in the witness box is that the second respondent was a commission agent of the appellant company and there was a settlement of accounts between them and it was found that the amount covered by Ext.P4 cheque was due to the appellant and it was for that amount, the cheque was issued. In his cross-examination it was brought out that the company maintained accounts for the transactions. PW1 expressed his readiness to produce the ledger. But he did not produce it or any other account book. It is submitted that the second respondent filed an application calling upon the appellant to produce the account books. Still, they were not produced. The reason stated is that they were not seen in the company. This cannot be accepted. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316 the Supreme Court held that if a party withholds evidence in his custody which would prove his case, an adverse inference shall be taken against him. The non production of the account books by the appellant also is a ground to justify the acquittal of the second respondent.

7. For the reasons stated above, I h