The complainant bears the burden to prove the existence of a legally enforceable debt under Section 138, which can be rebutted by the accused through adequate evidence.

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. In the complaint, it is stated that the accused promised to arrange a visa for the complainant through her relatives for working abroad and as demanded by the accused, the complainant paid Rs.1,20,000/- in the month of June, 2006 for arranging the visa.

3. When the accused failed to arrange the visa, the complainant demanded back the money and then the accused issued a cheque for Rs.1,20,000/- dated 31.10.2006 to the complainant. 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 P7 were marked from the side of the complainant, and no evidence adduced from the side of the accused.

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

6. Heard Sri. Zubair Pulikkool, the learned counsel for the appellant, Sri. Renoy Vincent, the learned State Brief representing the first respondent/accused and Sri. Alex M. Thombra, the learned Senior Public Prosecutor for the second respondent.

7. The learned counsel for the appellant argued that the accused has not adduced any evidence to rebut the statutory presumptions and that the trial court is not justified in rejecting the evidence of PW1 regarding the execution and issuance of the cheque by the accused in discharge of a legally enforceable debt.

8. The learned State Brief appearing for the accused/first respondent argued that the specific case of the accused is that she never had any transaction with the complainant and she never issued any cheque to the complainant and the accused also denied the signature in the cheque and receipt of the statutory notice. It is pointed out that the accused filed statement at the time of 313 questioning to the effect that the cheque issued to one Balan was misused by the complainant herein to file this case and that the said Balan has filed a case against her and the same was dismissed.

9. It is also argued that the complainant has not made any averment in the complaint or in the chief affidavit as to when and where the accused executed and issued the cheque and the evidence of PW1 in cross examination would show that his evidence regarding the alleged transaction and execution and issuance of the cheque are vague and not reliable.

10. As per the complaint, the accused collected the amount during the month of June, 2006 and subsequently, issued Exhibit P1 cheque dated 31.10.2006. In cross examination, PW1 would say that he had acquaintance with the accused when she resided as a tenant in the house of Poothalath Rajan at Kakkattil. The evidence of PW1 would show that the accused resided as a tenant at Kakkattil about 5 to 8 years before she was examined before the court.

11. In another part of the cross examination, PW1 admitted that the house of the husband of the accused is at Nadapuram and he also stated that the accused and her husband resided in a house at Acharukandi and in another house at Kodiyura. However, PW1 admitted that he had no occasion to see the said house at Kodiyura and he never visited the place Kodiyoora. According to PW1, he obtained the address of the accu