The presumption under Section 139 of the N.I. Act shapes the burden of proof in dishonor cases, emphasizing the need for adequate evidence and pleadings.

JUDGMENT

This appeal is filed by the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The trial court convicted the accused, 1st respondent herein, and sentenced to undergo simple imprisonment for a term of three months and to pay a fine of Rs.1,50,000/-. In the appeal preferred by the 1st respondent, the appellate court set aside the conviction and sentence. The said judgment dated 29.10.2019 in Crl.Appeal No.59 of 2016 of the Additional Sessions Judge-VIII, Ernakulam is under challenge in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code).

2. The complaint was filed on the allegation that a cheque issued by the 1st respondent in discharge of a debt of Rs.1,50,000/-, when presented for encashment was dishonoured for want of sufficient fund in the account of the 1st respondent and despite giving notice, she failed to make payment. The trial court, after recording the evidence of PW1 and receiving Exts.P1 to P6 in evidence, considered the matter in detail. The case of the 1st respondent was that she was innocent and the cheque was not issued in discharge of any legally enforceable debt. After appreciating the evidence, the trial court found that the oral evidence of PW1 sufficiently had proved that Ext.P1 cheque was duly executed and issued by the 1st respondent in order to make repayment of Rs.1,50,000/- borrowed by her. The trial court further found that all the statutory requirements for a prosecution under Section 138 of the N.I.Act are complied with. Accordingly, the trial court proceeded to convict and sentence the 1st respondent.

3. In the appellate court, the 1st respondent raised two-fold contentions to assail the findings of the trial court. It is contended that evidence of PW1 was insufficient to prove passing of consideration and also that lack of pleadings in the notice as well as the complaint, would fail the prosecution. The appellate court, after considering the evidence somewhat in detail, confirmed the finding that execution of Ext.P1 cheque by the 1st respondent was duly proved. However, the court reversed the finding of the trial court. Concerning the sufficiency of pleadings, the learned counsel for the appellant placed reliance in Divakaran v. State of Kerala [2016 (4)

KLT 233].

4. Heard the learned counsel appearing for the appellant, the learned counsel for the 1st respondent and the learned Public Prosecutor.

5. PW1 is the complainant. He alone gave evidence before the trial court to prove execution of Ext.P1 cheque and also to establish that the said cheque was supported by consideration. In the chief examination, all such matters have been stated. During the cross-examination, he admitted that he did not know the place of residence of the 1st respondent, although he knew that presently she was residing at Kadavanthra. Although it was suggested to him that he had no sufficient income to make such a payment and also that the cheque was not executed before him, he duly had denied such questions.

6. The learned counsel appearing for the 1st respondent highlights the shabby nature of evidence of PW1 as regards the personal details of the 1st respondent and also her place of residence in order to contend that the findings of the appellate court are correct and legal. In Divakaran (supra) this Court held that unless necessary details, such as, the nature of the transaction, when was the cheque executed, etc. are not stated in the notice and also in the complaint, that would be denial of opportunity to the accused. Only if all such details are furnished in the notice and averred in the complaint, the accused will be in a position to set up his defence and defend himself in the prosecution. It was relying on that proposition, the appellate court recorded the finding that the prosecution could not succeed.

7. Correctness of Divakaran (supra) was considered by a Division Bench of this Court in Basheer K. v. C.K.

Usma