The presumption of debt under Sections 139 and 118 can be rebutted by the accused through credible evidence creating doubt about the complainant's claims.

JUDGMENT :

JOHNSON JOHN, J.

1. This appeal by the complainant is against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I Act’ for short).

2. As per the complaint, the accused borrowed Rs.3,75,000/- from the complainant and subsequently issued a cheque for Rs.3,75,000/- dated 13.12.2010 to the complainant in discharge of the debt.

3. When the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount to the complainant.

4. Before the trial court, from the side of the complainant, PW1 examined and Exhibits P1 to P7 were marked and from the side of the accused, DWs 1 and 2 were examined and Exhibits D1 and D2 were marked.

5. After trial and hearing both sides, the trial court convicted and sentenced the accused under Section 138 of the N.I Act and against the judgment of the trial court, the accused filed Crl. Appeal No. 206 of 2013 before the Sessions Court, Kozhikode. As per the impugned judgment dated 30.09.2013 in Crl. Appeal No. 206 of 2013 of the First Additional Sessions Judge, Kozhikode, the judgment of the trial court was set aside and the accused was found not guilty of the offence under Section 138 of the N.I Act and he was acquitted.

6. Heard Sri. T.G. Rajendran, the learned counsel for the appellant, Sri. J.R. Prem Navaz, the learned counsel for the accused/first respondent and Smt. Hasnamol N.S., the learned Public Prosecutor for the second respondent.

7. The learned counsel for the appellant argued that the accused has not disputed the signature in Exhibit P1 cheque and that the Sessions Court ought to have found that the complainant is entitled for the benefit of the presumptions under Sections 139 and 118 of the N.I Act.

8. The learned counsel for the accused/first respondent argued that the complainant has not disclosed, when and where the original transaction took place and as to when and where the accused executed and issued the cheque, in the complaint or in the chief affidavit of PW1 and that the evidence of PW1 in cross examination regarding the alleged transaction does not tally with the averments in the complaint. It is also argued that the evidence of PW1 in cross examination and the evidence of DWs 1 and 2 and Exhibits D1 and D2 would show that the case put forward by the accused is more probable and therefore, there is no reason to interfere with the findings in the impugned judgment.

9. It is stated in the complaint and the chief affidavit of PW1 that the complainant and the accused were friends and that they were working together abroad. According to the complainant, the accused borrowed Rs.3,75,000/- for his business purpose in the presence of one Aboobacker and subsequently, when the complainant demanded back the amount, the accused executed and issued Exhibit P1 cheque dated 13.12.2010 for Rs.3,75,000. But, it is pertinent to note that in the complaint or in the chief affidavit of PW1, it is not stated, when and where the complainant paid the amount to the accused and when and where the accused executed and issued the cheque to the complainant.

10. In cross examination, PW1 admitted that Rs.3,75,000/- is a big amount for him and he has no objection in producing documents to show the withdrawal of the said amount from the Bank. In another part of the cross examination, PW1 stated that the accused issued the cheque either towards the end o