In cheque dishonor cases under the NI Act, the presumption of issuance for debt persists until the accused disproves it; the burden lies on the accused to establish a probable defense.

JUDGMENT

The appeal on hand is originated from a judgment passed by Judicial First Class Magistrate Court, Pala (for short ‘the trial court’) in S.T.No.774/2016, which is a prosecution launched by the appellant under Section 138 of the Negotiable Instruments Act , 1881 (for short ‘the NI Act’). By the judgment referred to, the trial court found the accused not guilty of the offence punishable under NI Act and acquitted him under Section 255 (1) of the Code of Criminal Procedure , 1973 (for short ‘Cr.P.C’). He was set at liberty after cancelling the bail bond executed by him.

2. The facts of the case in brief are narrated hereunder:

The complainant is the son-in-law of the accused. The accused borrowed a sum of `30,00,000/- from the complainant for meeting the travelling expenses of his son.

Towards the discharge of the said liability, the accused had drawn a cheque on Federal Bank Ltd., Aruvithura Branch for that amount and issued to the complainant on 07.08.2011. The borrowal of the amount as well as the issuance of the cheque were taken place at the residence of the complainant. The cheque was presented by the complainant for collection through State Bank of India, Pala Branch, but it was bounced for the reason insufficiency of funds in the account of the accused. The complainant caused a registered legal notice to be issued to the accused. The notice was received by the accused but neither a reply was sent nor the money covered by the cheque was paid. Alleging that the accused has committed an offence under Section 138 NI Act, a private complaint was filed under Section 142 NI Act and thus the prosecution against him was launched.

3. Cognizance was taken by the court after recording the sworn statement of the complainant. Process was served on the accused from the court and on appearance, he was released on bail after furnishing the copies of all relevant records on him. Particulars of the offence were read over and explained to him for which, he pleaded not guilty, and faced trial.

4. PWs 1 to 7 were examined and Exts.P1 to P49 were marked on the side of the complainant. On closure of the evidence of the complainant, the accused was questioned under Section 313 (1)(b) Cr.P.C. He denied all the incriminating circumstances levelled against him. Dws 1 to 3 and Exts. P1 to 11 were marked from the side of the accused.

5. The complainant filed proof affidavit in lieu of examination in chief and was cross examined as PW1. According to him the accused has promised to repay the borrowed amount as and when his son obtains a job at Australia. According to him the accused had brought the cheque marked as Ext. P1 in evidence, from his side after filling up all entries and signing it, in his presence.

6. The complainant examined the Manager of Aruvithura branch of Federal Bank Ltd. as PW2 and through him the account opening form of the accused with the bank was marked as Ext.P8. The Manager of Kizhathadiyoor Service Co-operative Bank was examined as PW3. He deposed that the accused had availed a loan of `10,00,000/- from the bank, on 01.08.2011. He produced documents showing various proceedings relating to that loan and marked in evidence as Exts. P36 to P42.

7. The Branch Manager of State Bank of India, Erattupetta was examined as PW4. He produced the housing loan account closure statement of the complainant and marked it in evidence as Ext. P43. The Manager of Meenachil East Urban Co-operative Bank was examined as PW5. The documents pertaining to the loan account were produced by him and marked in evidence as Ext. P45 series.

8. The wife of the complainant who was also the daughter of the accused was examined as PW7. She tendered oral evidence to the effect that Ext.P1 was signed by the accused in her presence. According to her, the entries in Ext.P1 cheque were filled up in blue ink. The signature was also authored in blue ink. But when Ext.P1 was shown to her, she deviated from her earlier statement and deposed that the entries and sig