The presumption under Section 139 of the NI Act can only be rebutted by cogent evidence, not merely through procedural requests.

ORDER

The petitioner is the accused in S.T.No.71/2023 on the file of the Court of the Judicial First Class Magistrate- III, Kottarakkara, (‘Trial Court’, in short), which has been filed by the 2nd respondent alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments, (‘NI Act’, in short).

2. The petitioner has stated in the criminal miscellaneous case that, in the year 2016, the petitioner had given a blank cheque to secure an employment for his wife in the CSI missionary school. However, the cheque was never returned back to the petitioner and the same was misused by the 2ndrespondent. The cheque was handed over to the school in the presence of the vicar of the CSI church, Punalur. Unfortunately, the vicar died on 31.03.2025. In the above background the petitioner had filed an application to reopen the evidence for the purpose of summoning the District Chairman of the CSI Mission and the Secretary of the Punalur Municipality to produce the death certificate of the vicar which is crucial to prove the petitioner’s innocence. But, by the impugned Annexure A2 order, the Trial Court has dismissed the application on the ground that it is highly belated. Annexure A3 order is ex-facie erroneous and unsustainable in law. Hence, the Crl.M.C. 3. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The petitioner’s specific defense in the complaint is that, he had issued a blank cheque to the CSI missionary school, which was clandestinely misused by the 2^nd respondent. There is no legally enforceable debt payable by the petitioner to the 2^nd respondent. In fact, the cheque was handed over by the petitioner to the 2^nd respondent in the presence of the vicar of CSI church Punalur, who is now no more. Therefore, the petitioner wants to summon the death certificate of the vicar. Undisputedly, the person who has witnessed the alleged transaction is no more. The mere production of the death certificate is not going to give any relevance to the petitioner’s defense. Instead, it would be up to the petitioner to let in cogent evidence and rebut the presumption under Section 139 of the NI Act, that the cheque is not supported by consideration. Therefore, notwithstanding the delay in filing the application, I find that the reopening the evidence for the purpose of production of death certificate of the vicar is totally unwarranted and unnecessary. Hence, I am not satisfied that this is a fit case to invoke the inherent powers of this Court under Section 528 of the BNSS.

In the aforesaid circumstances, the Crl.M.C is dismissed, but without prejudice to the right of the petitioner to raise all the contention before the Trial Court, which in turn is directed to consider and dispose the complaint in accordance with law untrammelled by any observations made in this order.