The court emphasized that the presumption under Section 139 of the NI Act requires the accused to rebut the claim that a cheque was issued in discharge of a debt, regardless of who filled it out.

JUDGMENT :

1. The complainant in S.T. No. 97/2011 on the files of the Chief Judicial Magistrate Court, Kottayam, has filed this appeal, with the leave of this Court, challenging the judgment of acquittal dated 30.05.2013, whereby the learned Chief Judicial Magistrate acquitted the accused in the above case, where the prosecution alleges commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [hereinafter referred as ‘NI Act’ for short] by the accused. The 1^st respondent herein is the accused before the trial court and the 2^nd respondent herein is the State of Kerala, represented by the learned Public Prosecutor.

2. Heard the learned counsel for the appellant, the learned Public Prosecutor and the learned counsel appearing for the 1^st respondent, in detail. Perused the verdict under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as ‘complainant’ and ‘accused’ hereafter.

4. The case of the complainant before the trial court is that, the accused borrowed an amount of Rs.1,50,000/- from the complainant on 08.03.2011 and agreed to repay the same. Accordingly, cheque drawn at State Bank of Travancore, Kayamkulam Branch dated 18.05.2011 was issued by the accused in discharge of the said liability. But, when the cheque was presented for encashment, the same got dishonored for the reason ‘funds insufficient’ and the accused failed to make the payment even after getting the demand notice.

5. The trial court took cognizance of the matter and proceeded with trial. During trial, PWs 1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C. he did not opt to adduce any defence evidence.

6. On appreciation of evidence, the trial court found that the accused did not commit the offence punishable under Section 138 of the NI Act and thereby, the accused was acquitted.

7. While challenging the verdict of the trial court, it is argued by the learned counsel for the appellant/complainant that, the trial court found fault with the case of the complainant mainly on the point that the entries in Ext.P1 cheque were written by PW2, despite the fact that the accused is a graduate in law. Secondly, the complainant’s case was given a go by, by the trial court on finding inconsistency in the evidence given by PWs 1 and 2 regarding the place of transaction. It is pointed out by the learned counsel for the appellant/complainant that, in the complaint it has been specifically stated in paragraph No.7 that the accused borrowed an amount of Rs.1,50,000/- from the complainant and issued cheque in discharge of the said liability when they were at Collectorate, Kottayam and during the cross-examination of PW1, he reiterated the same. But, during examination of PW2, an eye witness to the transaction, he had given evidence that the transaction took place outside the RTO Office, Kottayam. According to the learned counsel for the complainant, Collectorate in Kottayam means a block of buildings where Head Offices of various departments including the District Collector’s Office have been functioning. Therefore, the evidence given by PW2 that the transaction was near the RTO Office and the evidence given by PW1 that the transaction was at Collectorate, Kottayam are pertaining to the same place and the same is not at all contradictory. He also submitted that, the trial court proceeded with the case under the wrong understanding of law that, a cheque could not be written by any other person other than the payer or drawer. In this connection, the learned counsel for the appellant/complainant placed decision of the Apex Court reported in Bir Singh v. Mukesh Kumar, 2019 0 Supreme (SC) 126 : 2019 (1) KLT 598 : 2019 1 KHC 774 : 2019 (1) KLD 420 where in paragraph Nos. 36 to 40 and 42, the Apex Court summarized the legal position as regards to the app