The statutory presumption in favor of cheque validity under the Negotiable Instruments Act can be rebutted if the accused provides credible evidence of prior repayment or discharge of the obligation.

JUDGMENT :

The appellant as complainant filed a private complaint under Section 138 of the Negotiable Instruments Act against the respondent in S.T.C.No.28 of 2019. The trial Court, by the judgment dated 29.09.2021 dismissed the complaint, acquitted the respondent/accused, against which, the present appeal is filed.

2. The case of the appellant/complainant is that the respondent is known to the appellant. On 12.01.2019, the respondent had taken a hand loan of Rs.1,30,000/- from the appellant and promised to repay the same. In discharge of the said liability, she issued a cheque bearing No.000052 drawn on Lakshmi Vilas Bank, Thiruthuraipoondi branch, dated 18.01.2019 for Rs.1,30,000/- and informed him to present the cheque on due date and collect the amount. The appellant presented the cheque in Canara Bank, Thiruthuraipoondi Branch. The cheque was dishonoured and returned for the reason 'Funds insufficient'. On receipt of the bank return memo, petitioner also caused a statutory notice on 06.02.2019, which was received by the respondent on 12.02.2019. The respondent sent a reply on 23.02.2019 with false allegations. Hence, ignoring the same complaint filed. During trial, the appellant examined himself as PW1 and marked Exs.P1 to P5. The respondent examined herself as DW1 and her brother as DW2 and marked Exs.D1 to D3. On conclusion of trial, the trial Court dismissed the complaint, acquitted the respondent.

3. The contention of the appellant is that the respondent not denied the issuance of cheque and the signature found in Ex.P1. In such circumstances the statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act comes into play. But the trial Court accepted the contention of the respondent that cheque/Ex.P1 was issued as security and the loan was discharged as early as in 2017. In support of her contention, she examined DW1 and DW2 and marked Exs.D1 to D3. Ex.D1 is the Statement of Account of the respondent in which, cheque No.000054 issued for Rs.1,00,000/- and the same was encashed by the appellant on 11.05.2017 and it was taken as a probable defence. The appellant submitted that DW1 in her evidence while confronting Ex.D1, saying that the cheque was not issued with serial number and the same was accepted. In such circumstances, the trial Court finding that cheque No.000052 ought to have been issued in the year 2017 and not in the year 2019 is not proper.

4. The learned counsel further submitted that the respondent admits that she had taken loan from the appellant for her urgent needs and now citing the earlier transaction and taking a defence that the liability for Ex.P1 discharged earlier is not proper. The offence under Section 138 of the Negotiable Instruments Act is purely a technical one, wherein the drawer of the cheque not denied the issuance of cheque and signature, but the trial Court proceeded on the evidence of DW1 stating that DW1’s husband Palaniyappan is known to the appellant and for his requirement the amount has been given to the respondent and if at all there is any liability, it is with Palaniyappan and not with the respondent. This may not be proper for the reason that within a family issuing cheque for each other is common. In such circumstances it would be proper for the respondent to examine Palaniyappan as defence witness. But the trial Court expects the appellant to examine Palaniyappan and considering the defence given by the respondent is acceptable, is not proper. The minor discrepancy with regard to the date and addition of his spelling in the name was considered to be one of the reasons for dismissing the appeal is not proper. Hence, the trial Court judgment is perverse and liable to be set