The decision emphasizes that in cheque dishonor cases, the burden rests on the accused to rebut the presumption of liability established under Section 139 of the N.I. Act.

JUDGMENT

The appeal on hand is preferred against a judgment passed by Judicial First Class Magistrate Court, Malappuram (for short ‘the trial court') on 28.01.2020 in ST No.916 of 2016. ST No.916/2016 was originated from a complaint filed by the appellant before the trial court, under Section 142 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) to launch a prosecution under Section 138 N.I. Act.

2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the complainant and the accused.

3. A brief discussion about the facts of the case is made hereunder:

The complainant was the Secretary-in-charge of Janakeeya Co-operative Urban Society, Kottakkal (for short, ‘the Society’) and she was authorised to file the complaint on behalf of it. The accused and his son availed loans amounting to `25,000/- each from the Society in the year 2005. Towards the discharge of the aforesaid monetary liabilities, the accused issued a cheque, dated 06.12.2013 for `1,28,000/- in favour of the Society. The cheque was presented on 13.01.2014 for encashment before Malappuram District Co-operative Bank, Kottakkal but was returned bounced with a memo intimating the reason that the account wherefrom it was drawn was closed. Notice as contemplated under Clause (b) of the proviso to Section 138 N.I. Act was issued to the accused on 01.02.2014. The notice was received by the accused on 03.02.2014, but failed to respond or to pay the amount covered by the cheque. Therefore, the prosecution was launched alleging that the accused has committed the offence punishable under N.I. Act.

4. Accused entered appearance on process being served on him following cognizance taken by the trial court. He was served with copies of the relevant documents proposed to be relied on by the complainant in the prosecution. Substance of the accusations raised against the accused in the complaint were read over and explained to him. He pleaded not guilty and claimed to face trial. Therefore, the trial was commenced.

5. The then Secretary of the Society was examined as PW1 and Exts.P1 to P10 were marked. On closure of the evidence of the complainant, the incriminating circumstances brought on record in evidence, were put to the accused, but he denied all those. The son of the accused was examined as DW1 and Ext.D1 was marked.

6. The counsel representing the parties were heard. The oral as well as the documentary evidence on record were appreciated. Ultimately a finding was arrived at by the trial court that the accused is not guilty of the offence under Section 138 N.I. Act and thus, acquitted him. The unsuccessful complainant is before this Court now in the appeal on hand.

7. Sri.P.P. Jacob and Sri.Liji J Vadakkedom, the learned counsel, respectively advanced arguments for the complainant and the accused. The learned counsel for the complainant urged that the reasoning adopted by the trial court on the basis of the decisions relied on and referred to in the judgment assailed is against the proposition of law stood settled by the Apex Court now in Bir Singh Vs. Mukesh Kumar [2019 (1) KHC 774 (SC)]. According to him, the notice admittedly sent by the complainant to the accused intimating the loan arrears and marked in evidence as Ext.D1 itself, creates suspicion on the veracity of the monetary transaction relied on by the complainant.

8. It was also contended that since the complainant has complied with all the statutory formalities envisaged under Section 138 N.I Act, he is entitled to have the presumption under Section 139 N.I Act attracted in his favour. According to him, the accused failed to rebut the presumption. The learned counsel contended furthermore that the trial court is totally erred in taking a view that the complainant must prove execution of the disputed cheque in a prosecution under N.I Act. Raising contentions as above, the learned counsel canvassed for allowing the appeal and setting aside the impugned judgment.

9.