The importance of direct evidence in proving the execution of a cheque and the burden of proof in cases under Section 138 of the NI Act.

JUDGMENT :

1. The complainant in CC No.1309/2002 on the file of the JFCM, Mavelikkara is the appellant, who challenges the order of acquittal of offence punishable under Section 138 of the Negotiable Instruments Act (for short the NI Act) in a private complaint filed by him before the court below.

2. The complainants case is that, on 08.07.2002 the accused borrowed an amount of Rs.3,75,000/- and in discharge of the loan liability, she issued Ext.P1 cheque dated 22.02.2002 drawn for an amount of Rs.3,75,000/- in the name of the complainant, on State Bank of Travancore, Kurathiyad branch. The cheque on presentment was dishonoured by the drawee bank for the reason that the accused did not maintain sufficient amount in her account. A demand notice sent to the accused seeking repayment of debt was accepted by her, but she failed fail to settle the transaction and further did not bother to respond also. On these facts, the appellant filed private complaint for the offence punishable under Section 138 of the NI Act before the court below.

3. The accused denied charge under section 138 of the NI Act contending that she had neither executed Ext.P1 cheque nor delivered it to the appellant. The defence case set up by the accused is that Ext.P1 cheque was removed from her house by appellant by committing theft. It is said that the appellant is a family friend of her and she did not have any monetory transaction necessitating issue of Ext.P1 cheque in the name of the appellant.

4. On the side of the appellant, he was examined as PW1 and Exts.P1 to P6 were marked on his side.

5. After answering the questions that were put put to the accused under Section 313 Cr.PC, she summoned the Manager of the drawee bank and examined him as DW1. DW2 is the collecting banker before whom the cheque was presented for encashment. D1 and D2 are the defence records produced to prove the contention of the accused.

6. The court below after going through the entire records held that the appellant failed to prove that accused executed and delivered Ext.P1 cheque to him. After comparing the signature in Ext.P1 cheque with the admitted signatures of the accused, the court below opined that there was difference in the signature since the alphabet letter S in the initial of accused, Sreekala was missing in Ext.P1 cheque, whereas, her admitted signatures contained the alphabet S also. It was also observed that appellant failed to discharge his burden by making available necessary bank records containing the admitted signature of accused maintained in the drawee bank. Under these circumstances, the court below was not inclined to accept the case of the appellant that accused drew and delivered Ext.P1 cheque in his name. Accordingly, the impugned order of acquittal was passed.

7. I have heard the learned counsel for the appellant as well as the accused.

8. It is contended by the learned counsel for the appellant that the court below failed to appreciate the evidence given by the appellant as well as to take into account the cogent circumstances and also the broad probability in the case and consequently entered into an erroneous finding resulting in issue of impugned order of acquittal which under no circumstance can be sustained either on evidence and law. It was further contended that for the mere reason that the initial of accused was missing in Ext.P1 cheque, it cannot be assumed that it was not signed by the accused at all. It was brought to my notice that Ext.D1 Copy of Account Opening Form containing the admitted signature of the accused was already available before the trial court for due comparison of disputed signature with the admitted signature therein and therefore itself, the observation that appellant failed to discharge his burden was factually erroneous. The learned counsel for the appellant further relied on the testimony given by DW1, Manager of the drawee bank who proved that the dishonour of the cheque was not on account of any difference in signature but o