A signed cheque establishes a presumption of liability; the accused must provide evidence to rebut this presumption to avoid conviction under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

JOBIN SEBASTIAN, J.

This appeal has been preferred by the complainant in C.C. No.294/2011 on the file of the Judicial First Class Magistrate Court, Ramankary. 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 she was convicted and sentenced to undergo simple imprisonment for a period of three months and to pay Rs.1,00,000/- as compensation under Section 357 (3) of Cr.P.C.

2. However, subsequently, the accused preferred an appeal. The learned Sessions Judge, Alappuzha, vide judgment dated 26.03.2014 in Crl. Appeal No.492/2013, 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 hereinafter be referred to as the complainant and the accused for clarity.

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

The accused and the complainant are known to each other. The accused borrowed an amount of Rs.1,00,000/- from the complainant. Towards the discharge of the said liability, the accused issued a cheque for Rs.1,00,000/- dated 15.10.2011 drawn on the account maintained by him with Alappuzha District Co-operative Bank, Pulinkunnu branch, in favour of the complainant. At the time of issuing the cheque, the accused assured the complainant that there would be sufficient funds in his account as and when the cheque is presented for encashment. However, when the complainant presented the said cheque for collection through his account maintained at Alappuzha District Co-operative Bank, Kavalam branch, the same was returned dishonored, stating the reason ‘funds insufficient’. Thereafter, the complainant issued a notice to the accused intimating the dishonour of the cheque and demanding the payment of the cheque amount. Although the said notice was duly served on the accused, he neither made the payment nor issued any reply. Consequently, the accused is alleged to have committed an offence punishable under Section 138 of N.I. Act.

4. Before the trial court, the complainant was examined as PW1 and marked Exts. P1 to P6. After consideration of the oral and documentary evidence on record, and after hearing both sides, the trial court found the accused guilty of the offence punishable under Section 138 of N.I. Act, and accordingly convicted her. Assailing the said judgment, the accused approached the Sessions Court, Alappuzha, in appeal. The learned Sessions Judge, Alappuzha, vide judgment dated 26.03.2014 in Crl.Appeal No.492/2013, allowed the appeal and found the accused not guilty of the offence under Section 138 of N.I. Act, and she was acquitted. Assailing the said finding and the order of acquittal, the complainant has preferred this appeal.

5. I heard Sri.S. Sanal Kumar, the learned counsel appearing for the appellant, and Smt. Maya M.N., 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. According to the counsel, since the execution of the cheque stood fully established, the complainant had successfully laid the foundation for drawing a presumption under Section 139 of N.I. Act. However, the Sessions Court acquitted the accused without taking note of the fact that the accused miserably failed to discharge the said presumption. It was also contended that the finding of the Sessions Judge that th