The burden of proof for establishing possession of a cheque for consideration and the status of a holder in due course under Section 138 of the Negotiable Instruments Act, 1881.

JUDGMENT :

T.V. Anilkumar, J.

Complainant in S.T.No.74/2005 before Judicial First Class Magistrate, Payyannur, challenges order of acquittal of accused in the private complaint filed by him under Section 138 of the Negotiable Instruments Act, 1881(for short, the N.I.Act).

2. Complainant's case is that the accused in partial discharge his gross liability for an amount of Rs.4,50,000/- issued Ext.P1 cheque dated 05.12.2004 in favour of him drawn on Cheruthazham Service Co-operative Bank Limited, Mundoor branch and on presentment of the cheque, it was dishonoured for 'want of sufficient funds' at the credit of the accused. Accused did not reply to the notice sent by complainant demanding discharge of debt and therefore, complaint was filed for offence punishable under Section 138 of the N.I.Act, after complying with all formalities required by law.

3. On accused denying charge, the court below examined the appellant/complainant as PW1 and received Exts.P1 to P5 in evidence on his side. The accused in his answers given under Section 313 of the Code of Criminal Procedure, 1973(for short 'the Cr.P.C.) said that he did not have any monetary transaction with the appellant nor he issued Ext.P1 cash cheque to the latter. According to him, Ext.P1 which is a blank cheque was given to complainant's father Moosa Haji, as security for rent arrears of a building after it was taken on rent from Sri. Haji. The building was taken on rent for conducting Ayurvedic pharmaceuticals in his wife's name and therefore, a blank cheque drawn by his wife was also given to Sri. Haji. When accused's relationship with appellant fell out, the latter managed to obtain Ext.P1 cheque from Sri. Haji and filed this false complaint. In support of his case, he examined his Driver as DW1.

4. The court below after hearing both sides held that since Ext.P1 is a cash/bearer cheque, the appellant was to discharge heavy burden of showing that the cheque came to his possession for consideration and therefore, he is a holder in due course. According to the court below, this burden was not discharged. It was held that the transaction connecting appellant with the accused was not satisfactorily proved and therefore presumption of consideration ordinarily available to a cheque cannot apply to Ext.P1. In any view of the matter, according to the court below, evidence given by PW1 required corroboration and in the absence of independent evidence, the complainant's case is doubtful. The court below also remarked that material particulars as regards the date of transaction and date and place of issue of cheque were also not pleaded by the complainant and these defects would certainly tell upon the veracity of the prosecution case.

5. The contention advanced in this appeal by the learned counsel for the appellant is that the evidence on record was misread by the court below and the transaction as well as consideration for Ext.P1 cheque was sufficiently proved by the appellant's testimony as well as circumstances on record. It was further contended that there is apparent contradiction between the defence set up in the statement given under Section 313 of the Cr.P.C. and the evidence adduced through defence witness examined as DW1 and this contradiction was not taken note of by the court below while disbelieving appellant's evidence. It was submitted that notwithstanding Ext.P1 being a bearer cheque, the appellant succeeded in proving that he is the holder in due course being entitled to initiate the prosecution against the accused and further that the cheque was issued in discharge of legally enforceable debt.

6. On the other hand, the learned counsel for the first respondent/accused supported the impugned order of acquittal and contended that the order did not call for any interference. It was submitted that the court below examined the evidence meticulously and rightly found that the defence version alone was probable.

7. This appeal being a challenge assailing an order of acquittal, the so