The presumption of cheque execution under Section 139 NI Act can be rebutted by proving the non-existence of liability.

JUDGMENT

Appellant was the complainant in S.T.No.462/2011 on the files of the Judicial First Class Magistrate Court, Pattambi. The proceedings arose under Section 138 of the Negotiable Instruments Act, 1881 [for brevity, the Act]. Parties are referred to as they were in the trial court, with the appellant being referred to as the complainant and the first respondent as the accused.

2. By the impugned judgment dated 18.03.2015, the learned Magistrate acquitted the accused after concluding that there was no evidence to show the execution of cheque by the accused.

3. According to the complainant, he had business transactions with Sri.Nisar at Bahrain, who was the brother-in-law of the accused. Pursuant to a liability of Rs.60,00,000/- due from Sri.Nisar, the accused undertook to clear the liability and issued two cheques, bearing Nos.192781 and 192782 drawn on State Bank of India, Thalassery Branch, both dated 15.08.2010 for an amount of Rs.30,00,000/- each. When the cheques were presented for encashment, they were dishonoured on 09.02.2011 with a memo stating ‘insufficient funds’. Subsequent to the statutory notice issued by the complainant, which was responded to through a reply notice denying the liability of the accused under the two cheques, the complaint was filed.

4. In order to prove the prosecution case, the complainant examined himself as PW1 and marked Ext.P1 to Ext.P16. After analysing the evidence adduced in the case, the trial court acquitted the accused, after coming to the conclusion that execution of Ext.P1 and Ext.P2 cheques were not proved and therefore, the benefit of presumption could not be availed by the complainant.

5. Sri.Jayesh Mohankumar, the learned counsel for the appellant/complainant, submitted that the reasoning of the trial court while acquitting the accused is totally perverse, warranting interference. According to him, the accused had unambiguously admitted the signature on the two cheques, and therefore, in the absence of any evidence to the contrary having been adduced by the accused, the trial court ought not to have come to the conclusion that the execution of the cheque was not proved. The learned counsel further submitted that the transaction between the brother-in-law of the accused and that of the complainant having been admitted, the trial court ought to have shifted the burden on to the accused himself to rebut the presumption and in the absence of any evidence adduced by her, the court ought to have relied upon the presumption under Section 139 of the Act to convict the accused.

6. Sri.Satheesh Kumar A.N., the learned counsel for the first respondent/accused on the other hand, submitted that, the totality of the evidence adduced by the complainant/PW1 unambiguously indicates the absence of any consideration for the cheques in question. According to the learned counsel, the complainant and the accused had no business transaction at all and that she was only a housewife, with no commercial dealings of any nature whatsoever. According to him, in the absence of any evidence to prove liability, the accused could not have executed the cheques, even though the signatures on the cheques were admitted, as they are both two different aspects. The learned counsel further pointed out that in the reply notice issued by the accused, it was specifically mentioned that the cheques were obtained under duress and threat and in the absence of any liability or transaction between the accused and the complainant, the burden was upon the complainant to prove the exis