The burden of proof lies on the complainant to establish the existence of a legally enforceable debt and the execution of the cheque, especially when the accused denies the transaction.

JUDGMENT

T his appeal is at the instance of the complainant in ST.No. 336 of 2005, on the file of Judicial First Class Magistrate Court-VII, Thiruvananthapuram, challenging acquittal of the accused, in a complaint filed by him under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’) vide judgment dated 20/7/2007.

2. The case of the complainant is that, the accused borrowed Rs.8 lakh from him, and towards discharge of that debt, she issued Ext.P1 cheque dated 25/8/2002, assuring that it would be honoured on presentation before the bank. But the cheque was dishonoured for the reason ‘insufficient funds’. The complainant sent registered lawyer notice to the accused intimating dishonour of the cheque, and demanding the cheque amount. Inspite of receipt of notice, the accused did not return the amount, and hence the complainant.

3. On taking cognizance and on appearance of the accused before the trial court, particulars of offence was read over and explained to which she pleaded not guilty and claimed to be tried.

4. PW1 was examined, and Exts.P1 to P5 were marked from the side of the complainant.

5. On closure of complainant’s evidence, accused was questioned under Section 313 of Cr.P.C. She denied all the incriminating circumstances brought on record, and stated that the complainant was a friend of her driver Shajahan. She was giving salary to her driver by way of cheques. The complainant and Sri.Shajahan made sexual advances against her, and since she refused, Sri.Shajahan handed over her signed cheque to the complainant, which was manipulated to file this complaint.

6. The accused herself got examined as DW1, and Ext.D1 was marked from her side.

7. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court acquitted the accused, finding that the complainant could not prove his case beyond doubt. Aggrieved by the acquittal of the accused, the complainant has preferred this appeal.

8. Heard learned counsel for the appellant/complainant and learned counsel for the 1st respondent/accused.

9. Learned counsel for the appellant would contend that the accused was admitting her signature in Ext.P1 cheque. The presumptions available under Sections 118 and 139 of the NI Act was there, to prove that Ext.P1 cheque was issued for an amount of Rs.8 lakh, towards discharge of a legally enforceable debt. So according to him, the trial court went wrong in acquitting the accused, and hence the accused has to be convicted under Section 138 of the NI Act setting aside the impugned judgment.

10. Whereas learned counsel for the 1 st respondent/

accused would submit that, the complainant has no case, even in the complaint, what was the real transaction between the appellant and the 1 st respondent, so as to advance Rs.8 lakh to her. In the year 2002, Rs.8 lakh was not a small amount, to be advanced to a lady without executing any documents and without the presence of any witnesses. Moreover, the accused was a confidential assistant working in VSSC, Thiruvananthapurm, and her husband was employed abroad. So there was no need for her to borrow any money from the complainant. Learned counsel further contend that, one Mr.Shajahan was the driver of the accused, to whom salary was given by way of cheques signed by the accused. The complainant was a friend of Mr.Shajahan and both of them made some illicit advances against her, and since she refused, they conspired together, to file a false complaint against her, misusing her cheque.

11. In the original complaint, the complainant has stated that, the accused had sent reply notice to the complainant. But it is not mentioned, when that reply notice was received by him. But in the proof affidavit filed by the complainant, there is no mention about receipt of rep