In cases of cheque dishonor, the presumption of a legally enforceable debt under the N.I. Act places the onus on the accused to disprove it, leading to conviction upon failure to provide a reasonable defense.

JUDGMENT

The appeal is filed questioning the legality and correctness of the judgment passed by the Court of the Chief Judicial Magistrate, Kottayam, in S.T.No.516/2007, holding the accused in the above case (first respondent in the appeal) not guilty for the offence under Section 138 of the Negotiable Instruments Act (in short, ‘N.I.Act’) and consequently acquitting the accused. The appellant was the complainant and the first respondent was the accused in the above case. For the sake of convenience, the parties are, referred to as per the status before the Trial Court.

Factual narrative

2. The complaint was filed against the first respondent alleging that he had issued Ext.P1 cheque in favour of the complainant for an amount of Rs.3,00,000/- in discharge of a legally enforceable debt. The cheque, on presentation to the bank for collection, by Ext.P3 memorandum got dishonoured due to ‘insufficiency of funds’ in the accused’s bank account. Despite the complainant issuing Ext.P4 statutory lawyer notice to the accused, he failed to pay the demanded amount. Hence, the accused committed the above offence.

3. The learned Magistrate took cognizance of the offence. The accused pleaded not guilty to the substance of accusation read over to him. In the trial, the complainant and a witness were examined as PWs 1 and 2 and Exts. P1 to P6 were marked in evidence. The accused denied the incriminating circumstances appearing against him in the evidence in the questioning under Section 313 of the Code of Criminal Procedure (in short, ‘Code’). In the defence evidence, the accused examined an independent witness as DW1.

Trial Court judgment:

4. The learned Magistrate, after analysing the materials on record, found the accused not guilty for the offence. Consequently, the accused was acquitted under Section 255 (1) of the Code.

5. It is assailing the said judgment, the present appeal is filed.

6. Heard; Sri. P.C. Haridas, the learned counsel appearing for the appellant and Smt.S.Seetha, the learned Senior Public Prosecutor appearing for the second respondent. Even though notice was served on the first respondent/accused, there is no appearance for him.

7. The point is whether there is any illegality or error in the judgment passed by the court below.

8. It is very well settled by a host of precedents that this Court should be slow and circumspect in interfering with an order of acquittal. It is only when the conclusions arrived at by the Trial Court are manifestly erroneous and wrong, this Court should take a contrary view.

9. Recently, in Rupesh Manger (Thapa ) v. State of Sikkim [MANU/SC/1014/2023], the Honourable Supreme Court has held that the Appellate Court should reverse an order of acquittal only if it is so perverse and the conclusions are not plausible. Just because another view is possible, on the re-appreciation of evidence, the Appellate Court shall not disturb the findings of acquittal and substitute the findings of the Trial Court to convict the accused.

10. Keeping the above principles in mind, this Court proceeds to decide the appeal.

11. The complainant's case is that, the accused had in discharge of a legally enforceable debt issued Ext.P1 cheque for an amount of Rs.3,00,000/-, which on presentation to the bank, got dishonoured by Ext.P3 memorandum due to insufficiency of funds in the bank account of the accused. Despite issuing Ext.P4 statutory lawyer notice, the accused failed to pay the said amount.

Hence, the accused committed the above offence.

12. Indisputably, the accused did not send any reply notice. In Section 313 questioning under the Code, the accused denied all the incriminating circumstances put against him. In the defence evidence, the accused examined an independent witness (DW1) who testified that Ext.P1 cheque was executed by the accused, but was given to Muraleedharan. It was DW1 who collected the cheque from the accused and handed over to Muraleedharan. However, the complainant misused the cheque and filed the fal