The burden of proof lies with the complainant to establish the transaction leading to the issuance of a cheque, and failure to do so results in acquittal of the accused.

JUDGMENT :

A. BADHARUDEEN, J.

This criminal appeal has been filed under Section 378 (4) of the Code of Criminal Procedure , 1973, challenging the judgment of acquittal in C.C.No.101/2004 on the files of the Judicial First Class Magistrate Court, Erattupetta. The appellant herein is the complainant in the said case. The 2^nd respondent herein is the accused and the 1^st 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 trial court records.

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

4. On dishonor of Ext.P1 cheque for Rs.1,50,000/- (Rupees one lakh fifty thousand only), alleged to be issued by the accused to the complainant for a legally enforceable debt, the complainant approached the trial court and lodged a complaint alleging that the accused committed offence punishable under Section 138 of the Negotiable Instruments Act , 1881 (hereinafter referred to as ‘NI Act’ for short).

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 P6 were marked on the side of the complainant.

DW1 examined on the side of the defence.

6. On appreciation of evidence, trial court acquitted the accused on the finding that the complainant miserably failed to prove the transaction which led to issuance of Ext.P1 cheque towards the discharge of a legally enforceable debt or liability.

7. The points arise for consideration are;

1. Whether the trial court wrongly acquitted the accused on the finding that he did not commit the offence punishable under Section 138 of the NI Act?

2. Whether the verdict under challenge would require any interference?

3. Order to be passed?

8. Points Nos.1 and 2

The learned counsel for the complainant argued that in this matter, even though in the legal notice or in the complaint or in the chief affidavit, the date of transaction was not disclosed, during cross-examination, the complainant specifically given evidence that Ext.P1 cheque was issued before one month from the date of Ext.P1 cheque. That is to say, the cheque was issued on 01.01.2004 and the money was borrowed one month before. It is also pointed out by the learned counsel for the complainant that even though during initial cross-examination, PW1 given evidence that the amount was obtained by sale of his property and the deposit of the same in Federal Bank, Pala branch, the same was a mistake, traced out during examination of DW1, the Manager of Federal Bank. Subsequently, PW1 was recalled and given evidence that the amount advanced to the accused was from the loan amount of Rs.3,00,000/-, obtained by the complainant on 10.11.2003 by availing loan from Aruvithura branch of Meenachil East Urban Co-operative Bank and he had document to show availing of loan and discharge of liability by selling his property. But documents relating to the said loan or the sale of the property not produced. According to the learned counsel for the complainant, the transaction led to execution of Ext.P1 cheque has been proved and therefore, the complainant is entitled to avail the presumptions under Sections 118 and 139 of the NI Act.

9. Repelling this contention, the learned counsel for the accused argued that the complainant is not aware of the exact date on which he had advanced Rs.1,50,000/- to the accused as alleged. It is pointed out that either in the notice or in the complaint or in the