In a cheque dishonour case, complainant's unshaken testimony on transaction discharges initial burden, triggering statutory presumptions that accused must rebut with evidence to avoid conviction.

JUDGMENT :

A.BADHARUDEEN, J.

Judgment of acquittal dated 15.06.2007 in C.C.No.588/2005 on the files of the Judicial First Class Magistrate Court-IV, Neyyattinkara, is under challenge in this appeal filed at the instance of the appellant, who is the complainant in the above case. The 1^st respondent herein is the accused in the said case. The 2^nd respondent herein 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 in detail. Perused the judgment under challenge and the records available.

3. I shall refer the parties in this appeal as ‘complainant’ and ‘accused’ hereinafter, for easy reference.

4. Coming to the genesis of the case, the complainant had filed a complaint before the Judicial First Class Magistrate Court-IV, Neyyattinkara, alleging that the accused, who is the 1^st respondent herein, committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short). The precise allegation is that when the complainant presented Ext.P1 cheque dated 10.02.2004 for Rs. 3,00,000/- (Rupees three lakh only), issued by the accused in favour of the complainant to discharge liability for the said sum, the same got dishonoured for want of funds. Although the matter of dishonour of the cheque was intimated to the accused and demand for payment of the amount covered by Ext.P1 cheque, the accused failed to repay the amount.

5. The learned Magistrate tried the matter.During trial, PW1 was examined and Exts.P1 to P10 were marked on the side of the complainant. No defence evidence was adduced, though opportunity was provided to the accused to adduce defence evidence.

6. While assailing the verdict impugned, it is submitted by the learned counsel for the complainant that the learned Magistrate had taken a hyper-technical stand in evaluating the evidence of PW1, which would categorically suggest borrowing of Rs. 3,00,000/- by the accused from the complainant on 01.02.2004 and issuance of Ext.P1 cheque for its discharge. According to the learned counsel for the complainant, the evidence of PW1 shows that the complainant discharged his initial burden in the matter of transaction which led to execution of Ext.P1 cheque and thereby the complainant could very well avail the presumptions under Sections 118 and 139 of the NI Act. It is also pointed out that the presumptions in no way rebutted by the accused with the aid of evidence available. Therefore, the verdict impugned would require interference.

7. The learned Public Prosecutor also supported the verdict of the learned Magistrate.

8. Now the question arises for consideration are :

1. Whether the learned Magistrate went wrong in finding that the complainant failed to prove the transaction led to Ext.P1 cheque?

2. Whether the learned Magistrate is justified in acquitting the accused/1^st respondent herein?

3. Whether the impugned verdict of the trial court would require interference?

4. Order to be passed?

9. Point Nos. 1 to 4

In this matter, it is submitted by the learned counsel for the accused that the learned Magistrate relied on the evidence of PW1, which is the sole oral evidence available, while concluding that the accused himself wrote and signed the cheque, and the accused succeeded in establishing that the transaction was something otherwise than as deposed by PW1. The learned Magistrate addressed the question as to whether Ext.P1 cheque was issued by the accused to the complainant towards the discharge of any legally enforceable debt, and also whether the contention raised by the complainant, that the accused had committed offence punishable under Section 138 of the NI Act, had been proved. Finally, it was found by the learned Magistrate that the accused himself wrote the cheque and signed the same. Then it was found by the learned Magistrate that the accused succeeded in bringing home that the transaction was otherwise than what had