Point of Law : Fact that details in the cheque have been filled up not by drawer, but by some other person would be immaterial - Presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert.

JUDGMENT :

1. This is an appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for convenience). The appellant is the complainant in S.T. No. 623/2015 on the file of the Judicial First Class Magistrate Court (Temporary), Attingal and the appellant impugns judgment in the above case dated 27.02.2018, whereby the learned Magistrate acquitted the first respondent herein, who is the accused in the above case on appreciation of evidence.

2. Heard the matter in detail and lower court records are perused.

3. The case of the complainant before the trial court was that, the accused issued two cheques bearing Nos.597146 and 597147 dated 13.08.2013 drawn on the State Bank of India, Pattom Branch for Rs.10,00,000/-each to discharge the liability towards the complainant. Although the cheques were presented for collection, the same were returned for want of funds. Though notice intimating dishonour of cheques and demanding payment of the amount covered by the cheques were issued, the accused failed to make the payment or to send the reply.

4. The learned Magistrate took cognizance of the matter and secured the presence of the accused for trial. During trial, PW1 to PW3 were examined and Exts.P1 to P12 were marked on the side of the complainant.

5. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. DW1 to DW4 were examined and Exts.D1 and D8 were marked.

6. On appreciation of evidence, the learned Magistrate found that the accused is not guilty for the offence punishable under Section 138 of the N.I.Act and thereby acquitted the accused under Section 255(1) Cr.P.C.

7. The learned counsel for the appellant argued that the learned Magistrate failed to appreciate the evidence and on wrong appreciation of facts and evidence involved in this case, acquittal was recorded. According to him, the evidence of PW1 to PW3 supported by Exts.P1 to P12 substantially proved the initial burden caste upon the complainant in the matter of transaction leading to execution of Exts.P2 and P3 cheques and therefore, the trial court ought to have given benefit of presumptions under Sections 118 and 139 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act’) in favour of the appellant/complainant. The learned counsel given reliance on the evidence of PW1 as well as PW3 and also Ext.P12 in particular.

8. Whereas, the learned counsel for the first respondent supported the judgment of acquittal on the ground that the complainant miserably failed to prove his initial burden so as to avail benefit of presumptions in his favour. On perusal of the judgment, the learned Magistrate observed in Paragraph No.18 is as under:

“18. The complainant swear that at the time of giving these two cheque leaves the entries were already filled up and the accused put her signature in front of him. When the accused avoided the proposed project and in discharge of the liability of Rs.20 lakhs already received by her two cheques leaves were issued. The evidence of DW1 clearly reveals that even without completing atleast basement work no loan amount will be released and other installments will be released according to the progress of construction work. In this case, as per the evidence the entire loan amount was credited to the complainant according to the progress of construction work, which means the work completed satisfactorily. Hence, the contrary evidence given by the complainant is quite unbelievable. But according to defence version, the construction was undertaken by one Bineesh. On going through Ext.D1, it can be seen that all the loan amount was encashed by one Bineesh using cheque leaves issued by the complainant. All these circumstances leads to the conclusion that he may be the contractor of the said building. Another aspect to be considered is that nobody will give such a huge amount without an