Inconsistent testimony undermines the presumption of guilt under the Negotiable Instruments Act, allowing for acquittal on appeal.

JUDGMENT

This appeal has been preferred by the complainant in C.C.No.205/2008 on the file of the Chief Judicial Magistrate, Manjeri. After the trial of the said case, the learned Magistrate found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”), and he was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,50,000/-. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months.

2. However, subsequently, the accused preferred an appeal.The learned Additional Sessions Judge (Adhoc) Fast Track-II, Manjeri, vide judgment dated 28.05.2010 in Criminal Appeal No.347/2009, set aside the judgment passed by the learned Magistrate and acquitted the accused. Challenging the said judgment of acquittal rendered in the above-said case, the complainant approached this Court with the present appeal. For the sake of convenience and clarity, the parties in this appeal are hereinafter referred to as the complainant and the accused.

3. The case of the complainant in brief is as follows;The complainant is a teacher, and both the complainant and the accused were acquainted with each other. On 06.06.2007, the accused borrowed an amount of Rs. 1,50,000/- from the complainant, promising to repay the same within a period of two weeks. However, the accused failed to repay the said amount within the promised time. After repeated demands, on 03.04.2008, the accused came to the house of the complainant and issued a cheque dated 03.04.2008 for an amount of Rs. 1,50,000/-drawn on the account maintained by him with State Bank of Travancore, Manjeri branch, in favour of the complainant. However, when the complainant sent the said cheque for collection through his account maintained at South Malabar Gramin Bank, Trippanachi branch, the same was returned unpaid, stating the reason ‘funds insufficient’. Thereafter, the complainant issued a notice to the accused intimating the dishonour of the cheque and demanding the payment of the cheque amount. Although the said notice was duly served on the accused, he neither made the payment nor issued any reply. Thus, the accused is alleged to have committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 . (for short “N.I. Act”).

4. Before the trial court, the complainant got himself examined as PW1 and marked Exts. P1 to P4. After consideration of the oral and documentary evidence on record, and hearing both sides, the trial court found the accused guilty of the offence punishable under Section 138 of N.I. Act, and accordingly convicted him. Assailing the said judgment, the accused approached the Sessions Court, Manjeri, in appeal. The learned Additional Sessions Judge, Manjeri, vide judgment dated 28.05.2010 in Criminal Appeal No.347/2009, allowed the appeal and found the accused not guilty of the offence under of N.I. Act, and he was acquitted. Assailing the said finding and the order of acquittal, the complainant has preferred this appeal.

5. I heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor.

6. The learned counsel for the appellant would submit that the trial court acquitted the accused in a hasty and unjustified manner without properly appreciating the facts and evidence brought on record. According to the counsel, as the execution of Ext.P1 cheque was duly proved, the trial court ought to have found that the complainant had succeeded in establishing the basic facts to draw a presumption under Section 139 of the N.I. Act. The learned counsel urged that since the accused miserably failed to rebut the said statutory