The presumption under Section 139 of the NI Act is rebuttable, transferring the burden to the complainant if sufficient evidence creates doubt in the case.

JUDGMENT

The appellant was the complainant in S.T.No.108/2013 on the files of the Judicial First Class Magistrate Court-I, Mananthavady.

2. By the impugned judgment dated 17.01.2014, the learned Magistrate acquitted the accused against which this appeal has been preferred. Parties are referred to as they were in the trial court - the appellant being referred to as the complainant and the first respondent as the accused.

3. The complainant alleged that the accused had, in satisfaction of an amount borrowed by him, issued a cheque dated 07.12.2012, drawn on the Canara Bank for an amount of Rs.2,00,000/-. When the said cheque was presented for encashment, it was dishonoured with a memo stating ‘insufficient funds’. It was also alleged that, after the statutory notice issued to the accused returned unclaimed, the complaint was filed.

4. In order to prove the case, the complainant examined himself as PW1 and marked Exts.P1 to Ext.P5. The defence failed to adduce any oral or documentary evidence. After analysing the evidence adduced, the trial court came to the conclusion that the complainant had failed to prove that the cheque was drawn and executed by the accused in discharge of a legally enforceable debt or liability, and hence, the accused was acquitted.

5. Sri. Jose J. Matheikel, the learned counsel for the complainant, submitted that the trial court had erred in interpreting the scope of the presumption under Section 139 of the Negotiable Instruments Act, 1881 [for brevity, the NI Act] and submitted that once the complainant had proved the execution of the cheque, the burden was entirely upon the accused to rebut the presumption and in the absence of any such rebuttal, the accused ought to have been convicted.

6. The learned counsel for the accused, on the other hand, submitted that during the cross examination of the complainant, it was brought out that the cheque was issued towards another contract and that once the presumption was rebutted, the burden was entirely upon the complainant to prove under what circumstances the cheque was issued. According to the learned Counsel, since there was neither any pleading nor any material to show that the accused had ever borrowed any amount from the complainant, the trial court was totally justified in acquitting the accused.

7. I have considered the rival submissions and have also perused the oral and documentary evidence adduced.

8. The specific case of the complainant is that the accused had borrowed an amount of Rs.2,00,000/- and in discharge of the said liability, he had issued Ext.P1 cheque which was dishonoured on its presentation for encashment. The notice issued to the accused returned unclaimed and after complying with the statutory requirements for filing a complaint under Section 138 of the NI Act, the complaint was lodged.

9. The defence of the accused attempted to be brought out through cross-examination of PW1 was that the cheque was issued as a security. But no material was produced to show that the cheque was issued as a security. A mere solitary question during cross- examination that the cheque was issued as a security, which was even denied by the complainant, cannot by itself, be sufficient to rebut the presumption available under Section 139 of NI Act. Moreover, even a cheque issued as a security can be the basis for the cause of action for an offence under Section 138 of the NI Act. Reference to the decision in Sripati Singh v. State of Jharkhand and Another (2022) 18 SCC 614 is relevant in this context.

10.It is apposite to mention in this context that, the accused had failed to