The burden of proof in dishonor of cheque cases lies with the complainant, and failure to establish the transaction leads to acquittal.

JUDGMENT :

A. BADHARUDEEN, J.

1. The complainant in C.C.No.1475/1998 on the files of the Judicial First Class Magistrate Court-I, Kollam, has preferred this appeal challenging judgment of acquittal rendered in the above case, dated 18.01.2003. The 1^st respondent is the accused in the above case. The 2^nd respondent is the State of Kerala, represented by the learned Public Prosecutor.

2. Heard the learned counsel for the appellant/complainant and the learned Public Prosecutor. No appearance for the 1^st respondent/accused as the learned counsel relinquished the Vakalat. Perused the verdict under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as ‘complainant’ and ‘accused’ hereafter.

4. The complainant moved prosecution before the Judicial First Class Magistrate Court-I, Kollam, alleging that the accused committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short), on dishonour of cheque for Rs.75,000/- dated 13.02.1998 alleged to be issued by the accused in favour of the complainant, which was dishonoured when the same was presented for collection.

5. The trial court took cognizance for the said offence and proceeded with trial. During trial, PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, DW1 was examined and Exts.D1 to D15 were marked on the side of the accused.

6. The learned counsel for the complainant argued that by the evidence of PW1 and Exts.P1 to P7, the transaction led to execution of Ext.P1 cheque was proved. But the learned counsel failed to explain how it is possible for the accused to purchase textile items from a shop, which was closed prior to the alleged transaction.

7. The points arise for consideration are:

1. Whether the trial court went wrong in holding that the accused not committed offence punishable under Section 138 of the NI Act?

2. Whether the trial court verdict requires interference?

3. Reliefs to be ordered?

8. In this matter, PW1, the complainant, gave evidence in support of his contention and it was through him Ext.P1 cheque, Ext.P2 dishonour memo, Ext.P3 intimation, Ext.P4 legal notice, Ext.P4(a) Postal Receipts, Ext.P5 postal receipt and Exts.P6 and P7 bank records of the accused were marked. The case put up by the complainant is that the accused purchased textile items from the complainant for Rs.75,000/- on 13.02.1998 and issued Ext.P1 cheque towards its sale price. Whereas the case put up by the accused is that though he had business transactions with the complainant as part of the textile business and he stopped business on 31.03.1997, much prior to the transaction alleged by the complainant. The accused produced Exts.D1 to D15 documents to substantiate the dealings in between the complainant and the accused, with particular reference to Ext.D10. The trial court gave much emphasis to Ext.D10, the certificate issued by the Additional Sales Tax Office, Nedumangad, stating that the textile shop run by the accused in Nedumangad was stopped with effect from 01.04.1997. Thus it is established that the case put forth by the complainant that the accused, who had stopped textiles business on 01.04.1997, purchased textile items from him on 13.02.1998 and issued Ext.P1 cheque towards the sale price is an improbability. On this premise, the trial court found that the case of the complainant was not proved so that the accused was acquitted. In the instant case, the case put up by the complainant as to purchase of articles by the a