IMPORTANT POINT
The presumption of consideration under the Negotiable Instruments Act can be rebutted by the accused through a preponderance of probabilities, shifting the burden back to the complainant to prove the existence of a debt.

JUDGMENT :

K. BABU, J.

1. The judgment acquitting the accused in C.C. No. 538 of 2016 on the file of the Judicial First Class Magistrate Court, Tripunithura, is under challenge in this appeal filed under Section 378 of the Cr.P.C.

2. The complainant is the appellant. The accused is respondent No. 1. The complainant filed a complaint under Section 142 of the Negotiable Instruments Act against the accused alleging that she executed a cheque for Rs.40,00,000/- drawn on the State Bank of Travancore, Kidangoor Branch and the same was dishonoured due to insufficient balance. The complainant caused to issue a lawyer’s notice seeking the amount covered by the cheque. The accused reverted by sending a reply stating that she had received an amount of Rs.4,70,600/- from the complainant and she returned the amount with interest. The accused stated in the notice that the pleadings in the lawyer’s notice are false.

3. On the side of the complainant, PWs. 1 to 8 were examined and Exts.P1 to P10 were marked. The learned Magistrate, at the close of the trial, found that the complainant failed to prove that the cheque was issued for a legally enforceable debt. The Court found the accused not guilty of the offence and acquitted her.

4. The learned counsel for the complainant submitted that the complainant has established the execution of Ext.P1 cheque and the accused failed to rebut the presumption drawn in favour of her under Section 139 of the NI Act. The learned counsel submitted that the accused has not brought in any circumstances required for rebutting the presumption. The learned counsel relied on Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 : 2023 (6) KHC 691 to fortify his contentions.

5. The learned counsel for the accused submitted that the accused could lead evidence to shift the evidential burden to the complainant. The learned counsel submitted that Ext.P1 cheque was issued to the complainant at the time when the accused borrowed Rs.4,70,600/- and she had returned Rs.7,29,028/- inclusive of interest. The evidence adduced on the side of the complainant is sufficient to draw the inference in favour of the accused, the learned counsel added.

6. The case of the complainant is as follows:

The complainant and the accused were friends. The accused received small amounts from the complainant initially projecting various demands. Thereafter, she demanded huge amounts. In total, the complainant advanced an amount exceeding Rupees Forty Nine Lakhs. The complainant has the bank statements to prove the various transactions. The complainant raised the funds from her relatives and friends. The amounts were paid by deposit in the bank account number given by the accused and by payment of cash directly at the residence of the complainant. Few amounts were repaid but she left huge amounts unpaid. When the husband of the complainant later discovered the transactions, some issues evolved in her family and the complainant instructed the accused to repay the amount at the earliest. The accused immediately offered to repay the amounts. She showed to the complainant a bank statement in support of her capacity to repay the amount and confidentially requested that she required another urgent help within two days to enable her to manage repayment. To avoid strain and somehow to get back her money, the complainant paid the said amount. The accused came after two days, signed and issued Ext.P1 cheque in favour of the complainant for the amount rounded to Rs.40,00,0000/-.

7. The defence set up by the accused:

The pleadings made by the complainant are false. On different occasions, the accused received Rs.4,70,000/-and Rs.600/-. She returned a sum of Rs.7,29,028/- and settled the entire liability. At the time of the transaction, the accused had received blank signed cheques bearing numbers 462890 to 462897, stamp papers and blank signed white papers. Ext.P1 is one of the cheques in the possession of the complainant. The complainant misused the cheque and presented the sam