The court highlighted that oral evidence regarding a chitty transaction could suffice to substantiate a claim under Section 138, even in the absence of documentary evidence.

JUDGMENT

Dated this the 10th day of March, 2022 The appellant is the complainant in C.C.

No.263/2013 on the files of Judicial First Class Magistrate Court-III, Kochi for offences punishable under Section 138 of the Negotiable Instruments Act . The 2nd respondent is the accused.

2. The case of the appellant/complainant before the court below was that, the accused, towards the discharge of a legally recoverable debt had executed Ext.P3 cheque dated 07.11.2012, for a sum of Rs.58,000/- (Rupees Fifty eight thousand only). The cheque on presentation was returned dishonoured on ground insufficiency of funds. After issuing Ext.P6 notice, which was not replied, the complaint was laid. Before the court below, PW1 was examined and Exts.P1 to P8 were marked. The court below, on the basis of available evidence concluded that the complainant failed to disclose in the complaint or in the notice, the details of transaction, that the accused was a subscriber to a chitty, that he bid the chitty and later committed default of chitty, date of issuance of cheque, date of default of payment and the fact of issuance of Ext.P2 notice, were not disclosed in the complaint. The court further held that no document was produced to evidence the chitty transaction. The complainant failed to produce the chitty pass book, agreement between the parties, acknowledgement of receipt of money or any other document to prove the transaction. Accordingly, the court held that there was no material to show that cheque was issued towards the chitty transaction. Hence, it concluded that the complainant was not entitled for relief.

3. Aggrieved by the acquittal of the accused, the petitioner has approached this Court.

4. Heard the learned Counsel for the complainant and the learned Counsel for the accused.

5. The precise case of the complainant as is evident from the materials on record is that the accused had joined a chitty, bid it and after receipt of the money, failed to remit the installments. Pursuant to Ext.P2 notice, Ext.P3 cheque was executed. On presentation, it was dishonoured.

Thereupon, Ext.P6 notice was issued.

6. PW1 gave evidence in support of the above case. However, it is pertinent to note that the defence set up by the accused was that the cheque was issued towards a loan transaction and that it was not towards a chitty transaction. In the cross examination of PW1, a defence in the form of a suggestion was further set up that the cheque given at the time of availing loan was misused, even after repayment of the money due.

7. In the light of the above defence set up, the only obligation of the complainant was to establish that the cheque was issued towards the chitty transaction. However, in the complaint as well in Exts.P2 and P6, there was no reference to the chitty transaction. Ext.P2 was strongly denied by the accused. There is no material to show that Ext.P2 was dispatched nor that it was received by the accused. Hence, I am not inclined to rely much on Ext.P2. Even though in the complaint as well as in the notices there was no reference to chitty transaction, PW1 in his evidence has specifically referred to the version that accused joined a chitty, subscribed it, bid it and that he committed default. This specific version in the evidence was not challenged in the cross examination. Though several questions were put to the witness touching upon the details of the chitty transaction, and the witnesses answered all of it, there was no challenge that there was no such chitty transaction or that cheque was not given towards the chitty transaction. Even in Section 313 Cr.P.C. questioning, the accused had no specific case that there was no chitty transaction. Even though questions touching upon the chitty transaction was put to him in Section 313 Cr.P.C. questioning, his only answer was that he was not aware of the chitty transaction, and that it was not correct. He has no specific case that he had not joined any chitty transaction. In other words, in Section