The court reaffirmed that the burden of proof lies with the complainant to establish the execution of the cheque and proper service of statutory notice under the NI Act.

J U D G M E N T

This appeal is at the instance of the complainant in CC No.437 of 1996 on the file of Judicial First Class Magistrate Court-I, Ernakulam, assailing acquittal of the 2nd accused, in a complaint filed by him, under Section 138 of Negotiable Instruments Act (hereinafter referred as ‘The NI Act’), as per judgment dated 28.01.2006.

2. The case of the appellant/complainant was that, while he was working as an Executive in Hindustan News Print Ltd., News Print Nagar, Kottayam, the 1st accused was his colleague, and they were having so many monetary transactions between them. In the year 1994, the 1st accused was terminated from service due to unauthorised absence. Thereafter, for settling the account with the complainant, the 1st accused and his wife-the 2nd accused executed and issued Ext.P1 cheque dated 25.05.1996, for an amount of Rs.2,00,000/-, assuring him that the cheque would be encashed on presentation. But when the complainant presented that cheque for encashment, it was returned dishonoured for the reason ‘insufficient funds’ as per Ext.P2 dishonour memo dated 25.05.1996. Thereafter, the complainant sent Ext.P3 lawyer notice to the 1st accused in his two addresses, which was received by him on 10.06.1996, as seen from Ext.P4 acknowledgement card. Notice to the 2nd accused was sent in four different addresses. But none of them could be served, and it was returned to the complainant as seen from Ext.P5 envelopes. Since the amount was not paid, the complainant filed the complaint under Section 138 of the NI Act, against accused Nos.1 and 2.

3. Since the 1st accused was absconding, his case was split up and re-filed and the case against the 2nd accused-wife was proceeded with. She pleaded not guilty and claimed to be tried. PW1 was examined and Exts.P1 to P5 were marked from the side of the complainant to prove his case. DW1 was examined from the side of the 2nd accused. Ext.C1 was marked as Court Exhibit.

4. On analysing the facts and evidence, the trial court found that the complainant failed to prove execution of Ext.P1 cheque by the 2nd accused and so, she was acquitted under Section 255(i) of Cr.P.C., against which, the complainant has preferred this appeal.

5. Heard learned counsel for the appellant and learned counsel for the 1st respondent (A2).

6. Learned counsel for the appellant would contend that, though the amounts were borrowed from him by the 1st accused, towards discharge of that liability, Ext.P1 cheque was issued by A1 and A2 jointly, and so the 1st respondent (A2) also is liable, as that cheque was dishonoured for want of funds in their joint account. But the definite case of the 1st respondent (A2) from the very outset was that, there was no monetary transaction between herself and the complainant, and she never signed Ext.P1 cheque towards discharge of any liability, either of herself or of her husband. According to her, herself and her husband had a strained relationship, and they were living separately since 1992. True that she was having a joint bank account with her husband. According to her, the signature in Ext.P1 cheque was manipulated, and she never executed that cheque, affixing her signature, towards discharge of any debt, due to the complainant. She was a College Lecturer, and she had no occasion to borrow any amount from the complainant. The 1st accused, who was working in Hindustan News Print Ltd. was terminated from service in the year 1994. If there were any monetary transactions between the complainant and the 1st accused, she cannot be held liable or responsible for the same, as she never took over or agreed to share that liability.

7. PW1, the complainant, deposed before court that Rs.2,00,000/- was due to him from the 1st accused, and the 1st accused reached his house and handed over a cheque, which was bearing the signature of both the accused. So, he had no case when examined before court, that the 2nd accused also reached his house for executing Ext.P1 cheque in his favour