The presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof shifts to the complainant to establish the existence of a legally enforceable debt if the accused disputes the amount mentioned in the cheque and claims that it does not reflect the actual amount due.

J U D G M E N T

The appellant herein is the complainant in S.T.No.7148 of 2011 on the file of the Judicial First Class Magistrate Court-II, Ernakulam. The aforesaid complaint was submitted by the complainant against the 1st respondent herein, for the offences punishable under Section 138 of the Negotiable Instruments Act.

2. The averments in the complaint is as follows: The appellant is a partnership firm engaged in the business of sale of various kinds of paper products. The 1st respondent/ accused used to purchase various products from the appellants herein. The aforesaid purchases are used to be made by the 1st respondent on credit basis. Towards the value of goods so purchased on credit basis, the 1st respondent issued a cheque for Rs.6,68,318/- and on presentation of the said cheque, it was returned by the bank on the reason “funds insufficient”. Statutory notice was sent to the 1st respondent on 08.03.2011. The 1st respondent did not pay the cheque amount but sent a reply notice stating that the cheque was issued as security for the transaction with the appellant. The complaint was submitted in the above circumstances.

3. In support of the contentions of the appellant, the power of attorney holder of the appellant was examined as PW1 and documents Exts.P1 to P8 were marked. After closure of the prosecution evidence, the 1st respondent accused was examined under Section 313 Cr.P.C, during the course of which incriminating materials brought out in the trial against him were put to him which he denied. No defence evidence was adduced by the 1st respondent.

4. After the trial, the learned Magistrate found that the offences under Section 138 of the Negotiable Instruments Act is not made out and accordingly, the 1st respondent was acquitted. This appeal is filed in the above circumstances.

5. Heard Sri.Shiju Varghese, learned counsel for the petitioner, Sri.Aype Joseph, learned counsel for the 1st respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State.

6. The learned counsel for the appellant contends that the judgment passed by the learned Magistrate is liable to be interfered with, as the reasons cited for dismissing the complaint are not legally sustainable. The learned counsel specifically referred to various documents produced by him, particularly, Exts.P6 and P7 ledger extract which would indicate the entire transactions between the parties. It was also pointed out that in Ext.P7, the 1st respondent has affixed his signature acknowledging the liability. It was contended that, the trial court rejected the contentions of the appellant, without considering any of the said materials. In such circumstances, the learned counsel prays for setting aside the impugned judgment and allowing the complaint by imposing proper punishment to the 1st respondent herein.

7. On the other hand, the learned counsel for the 1st respondent would contend that the learned Magistrate passed a reasoned order by specifically referring to all the materials produced before the court. None of the said findings are unsustainable and no interference is warranted.

8. On going through the findings entered into by the learned Magistrate, it can be seen that one of the reasons for dismissing the complaint was that the Power of Attorney which is marked as Ext.P8 was not a proper one. It was also found that PW1, Power of Attorney holder, even though stated that, he was working therein for the past 25 years, was not aware of the transactions of the 1st respondent with the appellant, partnership firm. However, from the perusal of the deposition of PW1, it can be seen that the aforesaid finding is not correct. He denied the suggestion put forward by the learned counsel for the 1st respondent during the course of examination that, he was not having direct knowledge of the said transactions. In chief affidavit submitted by PW1, he asserted his personal knowledge as well. Apart from the above, with regard to Ext.P8 power of attorney, even tho