The accused can rebut the presumptions under Sections 118 and 139 of the N.I Act if sufficient evidence creates doubt about the debt's existence.

J U D G M E N T

This appeal by the complainant is against the acquittal of the accused under Section 138 of the Negotiable Instruments Act , 1881 (‘N.I Act’ for short).

2. As per the complaint, the accused issued cheque dated

16.04.2002 for Rs.1,25,000/- to the complainant towards the amount payable to the complainant and when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount to the complainant.

3. Before the trial court, from the side complainant, PW1 examined and Exhibits P1 to P6 were marked and from the side of the accused, DW1 examined and Exhibits D1 and D1(a) were marked.

4. After hearing both sides and considering the oral and documentary evidence on record, the trial court found that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act against the accused and hence, the accused was acquitted.

5. Heard Sri. V.M. Krishnakumar, the learned counsel for the appellant, Sri. Sudeep Aravind Panicker, the learned State Brief appearing for the accused/first respondent and Smt. Hasnamol N.S., the learned Public Prosecutor appearing for the second respondent.

6. The learned counsel for the appellant argued that the accused has not disputed the signature in Exhibit P1 cheque and that the trial court ought to have found that the complainant is entitled for the benefit of the presumptions under Sections 118 and 139 of the N.I Act.

7. The learned counsel for the accused/first respondent argued that the complainant has not disclosed the date of execution and issuance of the cheque in the complaint or in the statutory notice or in the chief affidavit of PW1 and that the evidence of PW1 in cross examination regarding the alleged transaction does not tally with the averments in the complaint. It is also argued that the evidence of DW1 and Exhibit D1 would clearly show that the case put forward by the accused is more probable.

8. In cross examination, PW1 stated that she paid money to the accused during May, 2001 and that the accused issued Exhibit P1 cheque during June, 2001. According to PW1, the accused is a friend of her husband and she had no occasion to see the accused before the date of payment of money. Regarding the source, PW1 would say that she paid the money kept in her possession and that she received money two days prior to the payment of money to the accused.

9. In cross examination, PW1 admitted that she cannot remember the features of the accused; but, she admitted that when the cheque was presented for collection, the accused was abroad. It is not known to PW1 whether her husband is conducting a chitty in Gulf. PW1 is also not aware as to whether the accused and her husband were residing together in Gulf. When the defence counsel made a specific suggestion to PW1 that her husband who is conducting a chitty in Gulf obtained two blank cheque leaves as security from the accused, she only stated that it is not known to her. However, she denied the suggestion that she misused the said cheque for filing this case.

10. The accused is examined as DW1 and he deposed that the complainant is not known to him and he never borrowed any amount from the complainant or issued any cheque to her. The passport of the accused is marked as Exhibit D1 and Exhibit D1(a) entry dated 22.06.2001 shows that he arrived at Calicut Airport from Gulf on

22.06.2001. DW1 also deposed that he returned to Gulf on 13.08.2001.

11. According to DW1, the husband of the complainant was conducting chitty in Gulf and in connection with the chitty, t