The presumption under Section 139 of the NI Act remains until sufficiently rebutted, shifting the burden to the accused.

JUDGMENT

Appellant was the complainant in S.T. No.1528 of 2015 on the files of the Judicial First Class Magistrate Court, Chottanikkara. He is aggrieved by the judgment of acquittal dated 28.02.2018 in a proceeding initiated under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). For the purpose of easier comprehension, the parties are referred to as they were in the Trial Court, with the appellant as the complainant and the second respondent as the accused.

2. The complainant alleged that he had given an advance amount of Rs.7,00,000/- (Rupees Seven Lakhs Only) to the accused and his father, in connection with a proposed sale of 22 cents of land in Kanayannur Taluk. However, since the accused and his father failed to convey the property, the advance amount was returned by issuing two cheques one drawn by the father of the accused and the other by the accused himself. The accused had issued cheque No.384800 dated 15.03.2013 for Rs.3,50,000/- drawn on State Bank of India, Vyttila Branch, in repayment of the advance amount collected. The complainant alleged that when the cheque issued by the accused was presented for encashment, it was dishonoured on 20.03.2013 with the memo ‘insufficient fund’, and thereafter, a statutory notice was issued to the accused dated 25.03.2013, intimating the dishonour of the cheque. According to the complainant, despite accepting the notice on 04.04.2013, the accused neither issued any reply notice nor repaid the amount, and hence, the complaint was lodged.

3. At the stage of evidence, the complainant examined himself as PW1, and marked Exhibit-P1 to Exhibit-P4. After analysing the evidence adduced in the case, the Trial Court, by the impugned judgment, found the accused not guilty of the offence alleged, and acquitted him. Aggrieved by the said judgment of acquittal, the complainant has approached this Court through this appeal.

4. Adv. Keerthi B. Chandran, the learned counsel, appearing on behalf of the complainant, contended that once all the statutory formalities were complied with and the accused had practically admitted the execution of the cheque, the Trial Court ought to have found the accused guilty and convicted him. According to the learned counsel, the trial court failed to consider the effect of the presumption under Section 139 of the NI Act in the correct perspective, and without there being any material to rebut the presumption, it was wrongly concluded that since the agreement for sale was not produced before the Court and since there was no evidence to corroborate the payment of Rs.7,00,000/- as advance, the presumption stood rebutted. The learned Counsel also submitted that as the findings are perverse, the judgment requires interference.

5. Adv. Biju Abraham, the learned counsel for the accused, on the other hand, submitted that, without proof of the source of money for the amount allegedly paid to the accused, the entire edifice on which the complainant’s case was built up became shaky, and therefore, the judgment of acquittal does not warrant any interference. The learned counsel further submitted that it is not necessary that the accused should adduce evidence to rebut the presumption, and from the cross-examination of the witnesses for the complainant itself, if it was clear that the presumption had been rebutted, then the burden was entirely upon the complainant to prove his case. In the instant case, the learned counsel submitted that no evidence was adduced by the complainant to prove the existence of any legally enforceable debt