IMPORTANT POINTS
In the absence of complainant producing the agreement and showing that the amount actually settled as per the agreement was Rs.1,30,000/-, the evidence of DW2 alone must be preferred. The burden in this respect is only on PW1 especially because the evidence on record has shown that his alleged financial transaction with accused was untrustworthy. This burden was not discharged by the complainant.

JUDGMENT :

The order of acquittal in S.T. No.1025 of 2004 on the files of Judicial Magistrate of First Class, Nilambur passed on 30.1.2006 is challenged by the complainant in this appeal.

2. He filed a private complaint against the accused alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). His case is that accused, who is the wife of his friend, borrowed from him an amount of Rs.1,30,000/-for her personal needs by the end of November, 2003, agreeing to discharge the debt within a month. Since she failed in her promise, she issued Ext.P1 cheque dated 13.2.2004 in his name drawn on her banker, South Malabar Gramina Bank for the amount borrowed. The cheque on presentment was dishonoured on the ground of want of sufficient funds at the credit of the accused. A notice sent to accused demanding discharge of debt was replied by her denying the whole transaction. Therefore, the complainant lodged prosecution against her invoking Section 138 of the N.I.Act.

3. She denied the charge against her when it was read over and explained to her and the appellant thereupon gave evidence in support of his case as PW1 and adduced Exts.P1 to P5 in evidence on his side. The accused in her answers recorded by court under Section 313 of Cr.P.C. submitted that she did neither have any financial transaction nor any acquaintance with the accused. Ext.P1 cheque was not delivered to PW1. She produced Ext.D1 lawyer reply to the demand notice of the appellant. She examined her husband, Anilkumar as DW2 to prove her contention that she did not have any sort of transaction with PW1 and the loan transaction that took place was between PW1 and DW2 and that too, for an amount much lesser than what was claimed in the cheque. The disputed amount was settled at the office of C.I. of Police, Nilambur, and it was later repaid also.

4. The court below after appreciating the contentions of both parties and analysing the evidence, circumstances and probabilities of the case held that complainant failed to prove that accused had any financial transaction with him. It was held that the probabilities of the case indicated that the disputed money transaction was only between PW1 and DW2. Inasmuch as the alleged transaction with accused was not proved, it was held that Ext.P1 cheque cannot be considered as having been issued in discharge of legally enforceable debt incurred by the accused and therefore the prosecution under Section 138 of the N.I.Act cannot sustain against her. On this finding, the impugned order of acquittal was passed.

5. I heard the learned counsel for the appellant and also the learned counsel for the first respondent, accused.

6. It is contended by the learned counsel for the appellant that the court below failed to read the evidence in its correct perspective and came to an erroneous conclusion that the real transaction was between PW1 and DW2. It was also argued that even if it was assumed for a moment that the transaction was between PW1 and DW2 also, the prosecution of accused was sustainable since Ext.P1 was nevertheless a cheque executed and issued by her for consideration, no matter it might have been issued in discharge of liability of her husband. It is also contended that accused has not taken a contention anywhere that she did not sign the cheque nor deliver it to the complainant. She did not have a case that the cheque issued was blank. According to the learned counsel, in the above scenario, presumption of consideration under Section 139 of the N.I.Act attaches to Ext.P1 cheque in its full vigour and this is sufficient enough to fasten the accused with criminal liability under Section 138 of the N.I.Act. The learned counsel for the appellant cited decisions in T.Vasanthakumar v. Vijayakumari [(2015) 8 SCC 378], Jyothi Prasad Bhat (Dr.) v. K.Sundara Rajan and Another (2013 (3) KHC 141), and Divakaran v. State of Kerala (2016 (4) KLT 233) to contend for the position that once delivery of cheque