The presumption of the existence of a legally enforceable debt under Section 139 of the NI Act can be rebutted by inconsistencies in the complainant's claims, leading to acquittal of the accused.

JUDGMENT :

V.G. Arun, J.

1. Appellant is the complainant in S.T. No. 1070 of 2015 of the Chief Judicial Magistrate's Court, Kollam. The complaint was filed against the 1st respondent, alleging commission of the offence under Section 138 of the Negotiable Instruments Act. The allegations in the complaint are to the following effect:

The complainant and accused are close relatives. In the year 2011 the accused sought financial assistance from the complainant for the purpose of constructing a house boat. As the accused is a lose relative, the complainant agreed to provide financial assistance and accordingly paid Rs.30,00,000/- by way of cheque and cash. After receiving full amount, accused executed Ext.P1 agreement on 25.03.2013 acknowledging receipt of Rs.30,00,000/- from the complainant and agreeing to pay Rs.50,000/- per month to the complainant towards profit share from the house boat, till Rs.30,00,000/- is repaid in full. As the accused failed to comply with the terms of the agreement, the complainant caused a lawyer notice to be issued on 30.05.2015, demanding payment in terms of the agreement. On receipt of the notice, the accused approached the complainant on 14.06.2015 and issued Ext.P3 cheque for Rs.40,30,000/- towards repayment of the amount borrowed and the amount due towards profit share. The cheque, on presentation, was dishonoured for insufficiency of funds. Hence, the complainant issued notice dated 08.07.2015 demanding the amount due under the cheque. Accused evaded the notice and caused the same to be returned with the endorsement `unclaimed'. The accused having failed to respond to the notice or repay the cheque amount, the complaint was filed.

2. Before the trial court, the complainant got himself examined as PW1 and the Managers of the drawer and drawee banks as PWs 2 and 3. The accused denied the incriminating circumstances put to him during 313 examination and submitted that, during 2008-2009, the complainant had borrowed an amount of Rs.14 Lakhs from him and had repaid that amount in the year 2011. Later, when the complainant was approached seeking financial help for the accused's sister, he insisted that the accused should stand guarantee for the amount and should hand over blank signed cheque as security. The amount borrowed by the accused's sister was repaid, but the interest portion is outstanding. For that reason, the blank signed cheque given as security by the accused was presented and thereafter the false case instituted when cheque bounced. No evidence, either oral or documentary, was adduced on the defence side.

3. The trial court, on appreciation of evidence and legal contentions, held the complainant to have failed in proving that the accused had executed and issued Ext.P3 cheque for Rs.40,30,000/- towards discharge of a legally enforceable debt. The complainant having thus failed to prove commission of the offence under Section 138 of the NI Act, the accused was acquitted under Section 255(1) Cr.P.C. Hence, this appeal.

4. Learned counsel appearing for the appellant/complainant assailed the trail court judgment on various grounds. It is contended that the trial court had acquitted the accused based on mis-appreciation of evidence and misunderstanding of law. The court deviated from the well settled legal position that, once execution of the cheque is proved, the presumption under Section 139 of the NI Act is attracted and burden is upon the accused to rebut the presumption. In the case at hand, other than pointing out certain minor discrepancies in the complainant's evidence, absolutely no effort was taken by the accused to rebut the presumption. The trial court ought to have found that, in Ext.P1 agreeme