The presumption of consideration under Section 139 of the Negotiable Instruments Act shifts the burden to the accused to prove the non-existence of a debt, which was not established in this case.

JUDGMENT :

(K. BABU, J.)

The judgment acquitting the accused in S.T.No.2356 of 2015 passed by the Judicial First Class Magistrate Court, Ponnani is under challenge in this appeal. The appellant is the complainant. The accused is respondent No.1.

2. The complainant filed the complaint alleging offence under Section 138 of the Negotiable Instruments Act, 1881 pleading that the accused executed Ext.P1 cheque for Rs.50,000/- in favour of him. The complainant presented the cheque for encashment. The cheque was returned for the reason “account closed”. A lawyer’s notice was caused to be issued to the accused. He received the notice but refused to return the amount covered by the cheque. He also did not respond by way of a reply to the statutory notice.

3. The trial Court took cognizance of the offence and issued summons to the accused. The accused appeared. The trial Court proceeded with the trial. The complainant gave evidence as PW1. On the side of the complainant Exts.P1 to P5 were marked.

4. The trial Court held that the complainant failed to prove the execution of Ext.P1 cheque and acquitted the accused.

5. The case of the complainant is as follows:

The complainant and the accused are known to each other. The accused borrowed a sum of Rs.50,000/- from the complainant. In discharge of the said liability, the accused issued Ext.P1 cheque forRs.50,000/- drawn on the Federal Bank Pvt. Ltd., Changaramkulam Branch. At the time of issuance of the cheque, the accused had filled out all the entries therein. The cheque was issued at the rented house of the accused situated at Panthavur. The cheque was dishonoured when presented before the drawer’s bank.

6. The case of the accused is as follows:

He lost Ext.P1 cheque that had been handed over to a third person in connection with a different transaction. No legally enforceable debt or liability exists between the parties.

7. The complainant gave evidence as PW1. He filed an affidavit in lieu of chief examination reiterating the pleadings in the complaint. While examined in cross, PW1 stated that in the month of January, 2012 the accused had borrowed Rs.1,40,000/- from him. When he gave the amount, the uncle of the accused had also accompanied him. The accused had repaid a total amount ofRs.90,000/- on different dates by instalments. When he demanded the balance amount, the accused executed Ext.P1 cheque. He stated that the accused executed the cheque in 2015.

8. Though the accused received the statutory notice, he did not send any reply. The accused admitted that Ext.P1 cheque was issued from his account. He has not denied the signature in Ext.P1 cheque. In his examination under Section 313 Cr.P.C. the accused admitted that it was an old transaction. Therefore, there is admission of issuance of Ext.P1 cheque and a financial transaction between the parties.

9. The learned Magistrate based the following grounds to acquit the accused:-

(i) The complainant had not narrated the details of the transaction in the complaint.

(ii) The complainant did not reveal the partial discharge of liability in the complaint.

(iii) The version of PW1 that, though the transaction took place in 2012 the cheque was executed in 2015 is not believable.

(iv) The statutory notice did not contain the details of the amount originally borrowed by the accused.

(v) Though the complainant has proved that a blank signed cheque was issued by the accused, he failed to prove the execution of the cheque by the accused.

10. The pleadings and evidence establish that Ext.P1 cheque was drawn from the account of the accused. He admitted the signature in Ext.P1, but denied the contents therein and the existence of the liability.

11. A negotiable instrument, including the cheque, carries presumption in consideration in terms of Section 118(a) and under Section 139 of the Negotiable Instruments Act. Dishonour of a cheque carries a statutory presumption of consideration. The holder of the cheque, in due course, is only required to prove that the cheque was