The main legal point established in the judgment is the applicability of the presumption under section 139 of the Negotiable Instruments Act and the maintainability of a complaint based on multiple cheques issued for a single transaction.

K. RAMAKRISHNAN, J.

1. The complainant in C.C.No.296/2001 on the file of the Judicial First Class Magistrate Court, Payyoli is the appellant herein. The case was taken on file on the basis of a private complaint filed by the complainant against the first respondent alleging offence under section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act').

2. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.1,28,000/- and in discharge of that liability, he had issued Exts. P1 and P2 cheques for Rs.78,000/- dated 14.9.2001 and Rs.50,000/- dated 6.9.2001 drawn on State Bank of Travancore, Vadakara branch in favour of the complainant, which when presented were dishonoured for the reason 'account closed' vide Exts. P3 and P4 dishonour memos. This was intimated to the complainant by his banker vide Ext.P5 letter. The complainant issued Ext.P6 lawyer notice vide Ext.P7 postal receipt and the same was received by the accused evidenced by Ext.P8 postal acknowledgement. He sent Ext.P9 reply notice denying the allegations and the liability. So according to the complainant, since the accused had hot paid the amount, he had committed the offence under section 138 of the Act. Hence the complaint.

3. When the accused appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P11 were marked on his side. After closure of the complainant's evidence, the accused was questioned under section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had no transaction with the complainant and he joined a chitty with one Desabhimani Krishnan and two blank signed cheques were given as security, which were misused and the complaint was filed through the complainant. In order to prove the case of the accused, he himself was examined as DW1 and two witnesses were examined as Dws. 2 and 3 on his side and Ext.D1 was marked on his side. After considering the evidence on record, the court below found that defence taken by the accused has not been established and he had not rebutted the presumption but relying on the decision reported in Joseph v. Philip Joseph, 2000 (2) KLJ 679 held that no offence under section 138 is attracted if the account was closed and the cheque was dishonoured for the reason otherwise mentioned in the section and acquitted the accused on that ground under section 255(1) of the Code. Aggrieved by the same, the above appeal was filed by the original complainant with leave petition as Crl.L.P.No.591/2003 and leave was granted and appeal was admitted to file.

4. During the pendency of the appeal, the original appellant died and his legal representatives were impleaded as additional appellants and permitted to prosecute the appeal as per the order in Crl.M.A.No.6060/2015.

5. Heard Sri. S.K. Madhu, counsel representing senior counsel Sri. Govindh K. Bharathan, appearing for the appellant and Sri. Aneesh Gurudas, counsel representing Sri. Kunhikrishnan, counsel appearing for the first respondent and Sri. Jibu P. Thomas, Public Prosecutor appearing for the second respondent.

6. Counsel for the appellant submitted that the dictum laid down in the decision relied on by the court below was overruled by this Court in the decision reported in Vathsan v. Japahari, 2003 (3) KLT 972 which was relied on by this Court in Salim v. Thomas, 2004 (1) KLT 816 as well. Further, the court below also found that the case of the accused is not probable and that is not sufficient to rebut the presumption under section 139 of the Act. So, according to the learned counsel, the court below erred in acquitting the accused and ought to have convicted the accused for the offence alleged.

7. On the