Point of law : Accused has succeeded in rebutting presumption, it is for complainant to prove existence of a debt in discharge of which subject cheque was issued

JUDGMENT :

This appeal has been filed by complainant in C.C No.1577 of 2003 on file of Judicial First Class Magistrate Court, Muvattupuzha challenging acquittal of 2nd respondent who was accused of an offence under Section 138 of Negotiable Instruments Act. complaint was filed alleging that 2nd respondent herein had in discharge of a debt, issued cheque No.327388 dated 30.12.2000 drawn on Catholic Syrian Bank, Koothattukulam branch for a sum of Rs.1,70,000/-and on presentation, said cheque was returned unpaid on ground of insufficiency of funds in account maintained by 2nd respondent/accused. complaint was filed after statutory notice and complying with all other formalities.

2. appellant/complainant was examined as PW1 and Exts.P1 to P11 were marked. From side of 2nd respondent/accused, DW's 1 to 3 were examined and D1 to D7 were marked.

3. learned Magistrate, on a consideration of matter found that complainant had failed to prove his case and accordingly, acquitted 2nd respondent/accused.

4. Sri.Peeyus A. Kottam, learned counsel appearing for appellant would submit that circumstances which led to finding that complainant has not proved his case can be seen (in summary) from paragraph 21 of impugned judgment. He submits that finding of learned Magistrate that cheque No.327388 was issued before 5.6.1995 at time when complainant had advanced a loan of Rs.40,000/-to 2nd respondent/accused is incorrect. According to him, circumstances taken into account by learned Magistrate was that there was evidence to show that cheque bearing No.327387 was presented on 23.05.1995, cheque bearing No.327392 was presented on 10.06.1995, cheque bearing No.327393 was presented on 05.06.1995 and cheque bearing No.327397 was presented on 17.07.1995 and that entire cheque book was exhausted on 07.02.1996. Further, a new cheque book was found to be issued on 29.03.1996 and accused presented cheque leaf-bearing No.238249 (from new cheque book) on 29.03.1996. learned counsel for appellant/complainant would submit that even according to case put forth by 2nd respondent/accused, a cheque bearing No.327387 was presented for encashment on 23.05.1995, whereas date of earlier loan admittedly availed by accused from complainant is 18.04.1995. From this, according to learned counsel for complainant, it is clear that cheque bearing No.327388 ( subject cheque) could not have been issued for loan availed on 18.04.1995. He would submit that learned Magistrate went wrong in assuming that a new loan of Rs.1,70,000/-would not have been granted when old loan was outstanding and that amount of loan of Rs.1,70,000/-would not have been given in cash when earlier loan of Rs.40,000/-was given by way of cheque. He submits that learned Magistrate should have accepted case of complainant that loan of Rs.1,70,000/-was given in personal capacity. He submits that there was no warrant for learned Magistrate to assume that cheque was a blank cheque given as security for earlier loan. D2 and D3 documents do not, according to learned counsel, go against case of Complainant. learned counsel also contends that there was nothing illegal in giving a personal loan just because business of complainant is that of money lending. learned counsel for appellant would rely on judgment of Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106 to contend that principle that appellate court would be slow in setting aside a judgment of acquittal that two views are possible could not be applicable in case of a prosecution under Section 138 of Negotiable Instruments Act. He would further rely on judgment of Supreme Court in M. Abbas Haji v. T.N. Channakeshava, (2019) 9 SCC 606 to contend that failure to explain as to how cheque in question reached hands of complainant is fatal to defence. He also relies on judgment of Supreme Court in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers, (2020) 12 SCC 724 to contend that where issuance of cheque and signatures are