The issuance of a cheque does not discharge a liability unless the underlying obligation is established; evidence supporting borrower-lender relationship prevailed over claims of the cheque being issued as security.

JUDGMENT :

A. BADHARUDEEN, J.

1. This criminal appeal is at the instance of the complainant in ST No.11/2007 on the files of the Judicial First Class Magistrate, Payyannur. The appellant assails judgment of acquittal recorded in the above case dated 03.12.2007. The 1^st respondent herein is the accused in the above case. The 2^nd respondent herein is the State of Kerala, represented by the learned Public Prosecutor.

2. Heard the learned counsel for the complainant/appellant and the learned Public Prosecutor in detail. Perused the trial court records.

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

4. On dishonour of Ext.P1 cheque dated 10.12.2004 issued by the accused in favour of the complainant for the amount he alleged to be borrowed on 16.11.2004, the complainant approached the trial court and launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short) by the accused.

5. The trial court took cognizance for the offence punishable under Section 138 of the NI Act. During trial, PW1 was examined and Exts.P1 to P8 were marked on the side of the complainant. 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, DW1 and DW2 were examined and Exts.D1 to D2 were marked.

6. Thereafter, the trial court acquitted the accused on appreciation of evidence, holding that the accused did not issue Ext.P1 cheque for discharge of the liability as alleged in the complaint, where the accused adduced evidence to establish his case that the cheque was issued by the complainant as security for another transaction.

7. In view of the arguments advanced, the questions 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 trial court verdict would require interference?

3. Order to be passed?

Point Nos. 1 and 2

8. In this case, PW1 is the complainant and he filed chief affidavit and deposed regarding the transaction. According to him, the accused was familiar to the complainant and the accused borrowed an amount of Rs.60,000/- from the complainant on 16.11.2004 and issued Ext.P1 cheque dated 10.12.2004 to discharge the said liability. He further deposed about presentation of the cheque for collection, its dishonour, issuance of legal notice and its return as ‘unclaimed’. It was through PW1, apart from Ext.P1, Ext.P2 cheque return memo, Ext.P3 copy of lawyer notice, Ext.P4 postal receipt, Ext.P5 returned lawyer notice, Exts.P6 to P8 lawyer notices sent by the accused to the complainant.

9. PW1 was cross-examined by the learned counsel for the accused suggesting that he had been conducting steel marketing company in Pilathara and he had visiting card in the same name with his mobile number. The same was denied by PW1 stating that the phone number in the visiting card is that of his brother and not of him. Later, the visiting card was tendered in evidence through DW1, the accused himself. As regards execution of Ext.P1 cheque, PW1 deposed that Ext.P1 was written and signed by the accused in his presence. It was suggested during cross-examination that Ext.P1 cheque was issued on 10.2.2004 as blank signed one towards security when the complainant undertaken the work of paving interlock bricks at the house of the accused and his brother Abdul Kareem. It was also suggested that out the agreed amount, Rs.38,000/- was not paid as the work was not properly done and there was breakage in the interlock bricks, paved in the court yard. Those suggest