IMPORTANT POINT
The court reaffirmed that the burden of proof lies on the accused to disprove the presumption of liability under Section 139 of the Negotiable Instruments Act.

JUDGMENT :

Jobin Sebastian, J.

This appeal has been preferred by the complainant in S.T.No.157 of 2009 on the file of the Judicial First Class Magistrate Court-IV, Kollam. After the trial of the said case, the learned Magistrate found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”), and he was convicted and sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs.1,00,000/-. However, subsequently, after considering the appeal preferred by the accused, the learned Additional Sessions Judge, Kollam, vide order dated 30.10.2013, set aside the judgment passed by the learned Magistrate and acquitted the accused. Challenging the said judgment of acquittal rendered in the above-said case, the complainant approached this Court with the present appeal. The parties in this appeal shall be referred to as the complainant and the accused hereafter.

2. The case of the complainant in brief is as follows;

On 09.08.2006, the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability, issued a cheque dated 04.01.2007 drawn on the account maintained by him with the State Bank of Travancore, Sasthamcotta branch, in favour of the complainant. When the complainant presented the said cheque for collection on 04.01.2007, through the account maintained by him with the State Bank of Travancore, Kizhakke Kallada branch, the same was returned dishonored, stating the reason ‘funds insufficient’. Thereafter, the complainant issued a notice to the accused intimating the factum of dishonor of the cheque and demanding the payment of the cheque amount. Though the said notice was duly served, the accused neither made the payment nor issued any reply. Hence, the accused is alleged to have committed an offence punishable under Section 138 of N.I. Act.

3. Before the trial court, the complainant was examined as PW1 and marked Exts. P1 to P6. Apart from the complainant, another witness was examined as PW2. From the side of the accused, he was got himself examined as DW1 and marked Exts.D1 to D3.

4. After consideration of the oral and documentary evidence on record, and after hearing both sides, the trial court by judgment dated 28.10.2010, found the accused guilty of the offence punishable under Section 138 of N.I. Act, and he was convicted. Assailing the said judgment, the accused approached the Sessions Court, Kollam, with an appeal, and the learned Additional Sessions Judge, Kollam, vide judgment dated 30.10.2013, allowed the said appeal and found the accused not guilty of an offence punishable under Section 138 of N.I. Act, and he was accordingly acquitted. Assailing the said finding and order of acquittal, the complainant has preferred this appeal.

5. I heard Sri. V.Vinoy Varghese Kallummoottil, the learned counsel appearing for the appellant, Sri.Abdul Jawab K., the learned counsel appearing for the 2nd respondent, and Smt.N.S.Hasna Mol, the learned Public Prosecutor.

6. The learned counsel for the appellant would submit that the first appellate court hastily acquitted the accused without a proper appreciation of the facts and evidence brought on record in this case. It was urged that the trial court had given unnecessary importance to the fact that the complainant had not seen the accused writing the amount in his handwriting on Ext.P1 cheque, despite there being no legal requirement that all the entries in a cheque must be filled by the drawer himself. According to the counsel, as the execution of the cheque stood fully established, the complainant had successfully laid the foundation for drawing a pr