The burden of proof lies on the accused to establish a discharge of liability once raised, and non-examination of the accused does not invalidate supporting evidence.

JUDGMENT :

A. BADHARUDEEN, J.

Complainant in ST No.99/2012 on the files of the Judicial First Class Magistrate Court-II, Perinthalmanna, has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C .’ for short), with leave of this Court challenging judgment of acquittal in the said case dated 20.11.2013. The 1^st respondent herein is the accused before the trial court and the 2^nd respondent is the State of Kerala, represented by the Public Prosecutor.

2. Heard the learned counsel for the appellant/complainant as well as the learned counsel for the accused/1^st respondent. Also heard the learned Public Prosecutor. Perused the records of the trial court.

3. I shall refer the parties in this appeal as 'complainant' and 'accused' for easy reference.

4. The complainant approached the magistrate court on the allegation that the accused committed offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act' for short). The specific case of the complainant is that the accused borrowed Rs.6,00,000 (Rupees six lakh only) from the complainant on 16.09.2011 and issued Ext.P1 cheque, dated 22.09.2011, for the said sum to discharge the debt. But on presentation of the cheque for collection, the same was dishonoured on 22.09.2011 for want of funds. According to the complainant, even after issuance of notice, the amount was not paid.

5. The trial court took cognizance for the offence punishable under Section 138 of the NI Act and proceeded with trial. During trial, PW1 was examined and Exts.P1 to P4 were marked on the side of the complainant. PW2 and PW3 were also examined on the side of the complainant. Ext.D1 also marked through PW1. After questioning the accused under Section 313(1)(b) of Cr.P.C ., when an opportunity was provided to the accused to adduce defence evidence, the accused examined DW1, an attestor of Ext.D1 agreement, and marked Ext.D2 also.

6. The trial court, on appreciation of evidence, acquitted the accused on the finding that since Ext.D1 agreement, showing discharge of the liability, was proved, there was no legally enforceable debt or liability at the time of presentation of Ext.P1 cheque.

7. The learned counsel for the complainant argued that the finding of the trial court, in paragraph No.15, to the effect that there was no legally enforceable debt or liability at the time of presentation of Ext.P1 cheque on 22.09.2011, is absolutely erroneous. According to him, even going by the date in Ext.P1, the plea of discharge raised as on 24.12.2011 would not be sufficient to find so. Therefore, the finding of the trial court that there was no legally enforceable debt on the date of presentation of the cheque is erroneous. It is pointed out by the learned counsel for the complainant further that presumption under Sections 118 and 139 of the NI Act would arise either on proof of execution of cheque or admission of the debt or liability. He has placed decision of the Apex Court in Rajesh Jain V. Ajay Singh reported in (2023) 10 SCC 148 in support of this contention.

8. It is pointed out by the learned counsel for the complainant further that the finding of the trial court that the accused proved Ext.D1 agreement is not sustainable, since the accused, who alleged to have paid Rs.6 lakh in terms of Ext.D1 agreement, was not examined. According to the learned counsel for the complainant, examination of DW1, one among the attesting witnesses to Ext.D1, alone is insufficient to prove the plea of discharge. If so, it could not be held that the discharge plea raised by the accused is proved. In such contingency, the case of the complainant is proved, rather admitted to hold that the accused committed offence punishable under Section 138 of the NI Act. Therefore, the verdict of the trial court would require reversal.

9. Repelling this contention, the learned counsel for the accused argued that Ext.D1 was confronted with PW1 and proved t