The court upheld that the presumption under Section 139 of the Negotiable Instruments Act is rebuttable and requires probative evidence to establish a defense.

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, in discharge of a liability, the accused issued cheque dated 24.1.2006 for Rs.1,00,000/- to the complainant.

3. 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.

4. Before the trial court, PWs 1 and 2 were examined and Exhibits P1 to P6 were marked from the side of the complainant and from the side of the accused, DW1 examined and Exhibits D1 and D2 were marked.

5. After hearing both sides and analysing the evidence, the trial court found that the defence version is more probable and 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.

6. Heard Sri. Mathew Scaria, the learned counsel for the appellant, Smt. Sruthi Das, the learned State Brief representing the accused/first respondent and Sri. M.S. Breeze, the learned Senior Public Prosecutor for the second respondent.

7. The learned counsel for the appellant argued that the accused has not disputed the signature in the cheque and that the trial court ought to have found that the complainant is entitled for the benefit of the statutory presumptions and that the findings in the impugned judgment against the complainant is not legally sustainable.

8. The learned State Brief representing the accused/first respondent argued that the complainant has not disclosed the nature of the transaction or 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 only in cross examination, PW1 stated that the accused borrowed the amount on 24.12.2005 as a personal loan. It is argued that the specific case of the accused is that himself and his father were subscribers in the chitty conducted by the complainant and that the complainant obtained a blank cheque as security from the accused in connection with the chitty and even after payment of the chitty instalments and in spite of Exhibit D1 notice dated 06.01.2006 issued by the accused to the complainant demanding the return of the cheque, the complainant failed to return the cheque.

9. The complainant is examined as PW1 and for the purpose of chief examination, he filed affidavit reiterating the averments in the complaint. PW1 admitted in cross examination that he is the Managing Partner of Kailath chitty funds and he is having money lending licence. According to PW1, he was the complainant in about 10-20 cases. PW1 admitted that the accused subscribed to the chitty conducted by him. But, he denied the suggestion that Exhibit P1 was obtained as a signed blank cheque from the accused, when he joined the chitty. According to PW1, the father of the accused was also a subscriber in the chitty conducted by him and that amount is due from the father of the accused in the chitty transaction. According to PW1, he has not filed any case against the father of the accused in connection with the chitty transaction; but, he would say that in connection with a personal loan advanced to the father of the accused, a case is pending as ST No. 2591 of 2007 before the Judicial First Class Magistrate.

10. In cross examination, when the learned counsel for the accused put a specific question as to whether he received the notice dated 06.01.2006 issued by the accused demanding the return of the cheque, instead of denying the sam