The burden of proof to rebut the presumption under the Negotiable Instruments Act lies with the accused, who must adduce evidence to challenge the validity of the cheque.

ORDER :

1. The petitioner is the accused in S.T. No.72 of 2021, pending on the files of the Judicial First Class Magistrate Court- IV, Kottayam. The genesis of the case is the 2^nd respondent's complaint regarding commission of the offence under Section 138 of the Negotiable Instruments Act ('the N.I.Act' for short) by the petitioner. In his complaint, the 2^nd respondent alleged that the petitioner had borrowed amounts from him for business purposes. Although portion of the amount was repaid, as on 02.12.2020, Rs.24,80,000/- was due from the petitioner. In discharge of the liability, the petitioner issued a post dated cheque and assured that there was sufficient balance in his account. Contrary to the assurance, the cheque, on presentation was dishonoured for insufficiency of funds. In spite of issuing notice demanding the amount, the petitioner did not make the payment or send a reply.

2. In order to prove his case, the 2^nd respondent mounted the box and also got the Manager of the petitioner's bank examined as PW2. During his examination under Section 313 of Cr.P.C. petitioner denied the incriminating circumstances put to him and thereafter, filed an application under Section 311A of Cr.P.C. with the prayer to get his signature and entries in the cheque compared with his admitted signatures and writings. The court below having dismissed the petition, this Crl.M.C is filed.

3. Learned counsel for the petitioner contended that the petitioner and the 2^nd respondent were business associates and the subject cheque was taken from the petitioner's office clandestinely and presented by forging his signature and making false entries. When specific questions in this regard were put to the 2^nd respondent during cross examination, he asserted that the petitioner himself had made the entries and signed the cheque. Therefore, it is imperative for the petitioner to prove that the signature and entries on the cheque are not his. If the petitioner succeeds in his attempt, that will aid him in rebutting the presumption under Section 139 of the N.I.Act. The decision of the Apex Court in T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633 and that of this Court in Oolamkunnath O.M. Sindhu v. Alokandy Krishan and Another, 2023 SCC OnLine Ker 5903 are pressed into service to contend that opportunity must be granted to the accused for adducing evidence in rebuttal of the presumption under Section 118 (a) or 139 of the N.I. Act, when the defence is raised that the complainant had misused the cheque.

4. Learned counsel for the 2^nd respondent referred to the cross examination of her client to point out that, from the question posed by the petitioner's counsel it is apparent that the petitioner's case was that he had handed over a signed blank cheque as security. Referring to the decision in Balu Sudam Khalde and Another v. State of Maharashtra, 2023 SCC OnLine SC 355, it is argued that the suggestion made by the defence counsel to a witness during cross examination, if found to be incriminating in any manner, would bind the accused. It is then argued that since service of statutory notice on the petitioner is accepted, the petitioner's failure to send reply speaks volumes about his complicity. Support for this argument is sought to be drawn from this Court's decision in Francis v. Pradeep, 2004 (2) KLT 1080.

5. According to the learned counsel, the very fact that the cheque was returned with the endorsement 'funds insufficient' and not 'signature varies', shows that the signature in the cheque had matched the signatures of the petitioner maintained in the bank. Moreover, even though the account opening form and those in specimen signature card of the petitioner were produced and marked through the Manager of his bank (PW2),