The burden of proof in cases under Section 138 NI Act lies with the complainant; however, this can be rebutted by the accused presenting credible evidence.

JUDGMENT

This appeal is originated from the judgment dated

22.01.2021 of Judicial First Class Magistrate Court-V, Kollam (for short ‘the court below’) in ST No.149/2017. The appellant is the complainant in ST No.149/2017, a prosecution initiated under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) based on a complaint filed under Section 142 NI Act.

2. The allegation in the complaint was that to discharge a monetary liability due from him, the accused issued cheque bearing No.419202 dated 20.06.2012 for a sum of `10,00,000/- drawn on State Bank of India, Kadavoor Branch. The said cheque was presented before the Bank for encashment but was dishonoured for the reason “funds insufficient”. Though notice was caused to be issued by the appellant on the accused, she did not turn up to clear off the monetary liability. She did not even send a reply notice. In that scenario, a complaint was filed by the complainant under Section 142 NI Act and the prosecution in question was launched for the offence under Section 138 NI Act. The accused when appeared before the court in response to the process issued therefrom, the accusations made in the complaint against her were read over and explained. She pleaded not guilty and claimed to face trial.

3. Accordingly trial was commenced. Complainant examined PWs 1 to 3 and marked Exts.X1 series and X2 series. On closure of the evidence of the complainant, the accused was questioned under Section 313 (1)(b) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) with reference to the incriminating circumstances brought out in evidence by the complainant. She denied all questions put to her and filed a written statement in addition. The contents of the written statement are to the following effect:

She was a housewife and her husband was working as a Welder and from the income earned therefrom, their livelihood was met. The complainant and his wife PW3 met her during trial before the court below. Herself or her husband had not availed any amount from the complainant. At the behest of the sister of her husband Mrs.Girija Surendran, a cheque of herself as name lender was obtained and was misused by the complainant to launch the prosecution. The house situated in the address shown in the cause title of the complaint was sold by her husband in January, 2009 and thereafter she had stayed in a house named ‘Nandanam’ and further in various houses on rent. Since the complainant do not know the correct address of the accused that Ext.P3 notice was issued in her earlier address. She has no transactions with the complainant and his family members were total strangers to her. She has evidence to let. Ext.P1 cheque was never executed by her in favour of the complainant.

4. After closure of the examination of the accused under Section 313 (1)(b) Cr.P.C. she was asked to enter on her defence. She failed to adduce any evidence. Thereupon the counsel representing the parties were heard and the court below arrived at a finding that the complainant failed to prove execution of Ext.P1 cheque by the accused and thus, commission of an offence punishable under Section 138 NI Act by the accused. Accordingly, the accused was acquitted under Section 255 (1) Cr.P.C. Aggrieved by the judgment above, the appeal on hand is filed.

5. Sri.V.Premchand argued on behalf of the appellant.

Though served with notice, none turned up to argue the matter on behalf of the respondent.

6. For the sake of convenience, the parties to this Appeal will hereinafter be referred to as the complainant and the accused in accordance with their status before the court below in the prosecution on hand.

7. According to Sri.V.Premchand, in the judgment under challenge the trial court has based four reasons to acquit the accused. The first reason according to him was the failure of the complainant to prove execution of Ext.P1 cheque. The second reason was the failure of PW1 to prove any prior understanding with the accus