The acquittal in a 138 NI Act case can be upheld if the complainant fails to prove the existence of a debt beyond reasonable doubt.

JUDGMENT

The complainant in a proceeding initiated under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘NI Act’) is the appellant. He challenges the order of acquittal in S.T.No.1321 of 2010 on the files of the Judicial First Class Magistrate Court-I, Kottarakara, dated 17.10.2012.

2. The complainant had alleged that in satisfaction for an amount of Rs.2,25,000/- borrowed by the accused, she issued two cheques dated 20.04.2010 and 26.04.2010 for Rs.95,000/- and Rs.1,30,000/- respectively. The cheques when presented for encashment returned dishonoured with the memo ‘funds insufficient’. A statutory notice was issued to which a reply notice was issued raising false contentions and thereafter, the complaint was filed.

3. In order to prove his case, the complainant examined himself as PW1 and marked Exhibits-P1 to Exhibit-P5. After analysing the prosecution evidence, the Trial Court came to the conclusion that the accused is not guilty of the offence alleged and acquitted her. This appeal is preferred against the said order of acquittal.

4. I have heard the learned counsel for the appellant, the learned counsel for the first respondent as well as the learned Pubic Prosecutor.

5. PW1 is the complainant. He filed an affidavit stating that in satisfaction of the amount borrowed by the accused, two cheques were issued for Rs.95,000/- and Rs.1,30,000/-. When those cheques were presented for encashment, they returned dishonoured. Though the signatures on the two cheques are admitted, the Trial Court came to the conclusion that the presumption under Section 139 of the NI Act stood rebutted, and therefore, the complainant having failed to prove his case beyond reasonable doubt, the accused was entitled to acquittal. 6. On a perusal of the evidence of PW1, it is noticed that, at the time the complainant is alleged to have lent Rs.2,25,000/- he was indebted to the bank for a loan availed by him. The evidence of PW1 also indicates that he was unaware about where the accused stays, what the accused does, and even other details about him. The complainant had no knowledge about the accused. Without having any information about the accused, it is impossible to believe that a person would lend such a large amount, that too when the lender himself was in debt to a bank. On the basis of the nature of evidence adduced by the complainant, the Trial Court concluded that it is impossible to believe that the complainant would lent such a huge amount, even without being aware about any details about the accused. The said reasoning cannot be said to be perverse.

7. Based on the nature of evidence adduced by the complainant, the Trial Court found that the presumption under Section 139 of the NI Act stood rebutted. In this context, it is worthwhile to refer to the decision in Rajesh Jain v. Ajay Singh [2023 (6) KHC 391] , wherein it was observed that the nature of evidence required to shift the evidentiary burden need not necessarily be direct, and it may comprise of circumstantial evidence or presumptions of law or fact.

8. On a perusal of the evidence of PW1, this Court is also convinced that the balance of probability regarding the existence of a debt or liability leans in favour of the accused. Once the presumption gets rebutted, then the ball falls in the court of the complainant to prove beyond reasonable doubt his case.

9. On an appreciation of the nature of evidence adduced, this Court notices that except for producing the two cheques, the dishonour memo, the intimation slip, the copy of lawyer’s notice and its acknowledgment card, the complainant failed to adduce any material to convince the Court that the accused had borrowed an amount of Rs.2,25,000/- on the date mentioned. As