In cheque dishonour disputes, the trial court's credibility assessment of evidence is paramount, and minor inconsistencies may not undermine a solid prosecution case.

JUDGMENT

Complainant is the appellant. He has filed this appeal challenging the judgment of acquittal rendered by the Sessions Judge reversing the conviction and sentence passed against the first respondent/accused by the learned trial Magistrate for the offence under Sec.138 of the Negotiable Instruments Act (for short, 'the N.I.

Act').

2. The case of the complainant is that the accused issued Ext.P1 cheque for a sum of Rs.30,000/- towards discharge of a debt under a loan transaction, promising its encashment on presentation in due course. The cheque presented was, however, dishonoured due to insufficiency of funds in the account of the accused. A notice issued intimating dishonour of the cheque and demanding the sum covered by the instrument was returned unserved. Complainant, thereupon, launched prosecution against the accused for the offence under Sec.138 of the N.I. Act.

3. The accused, on appearance, pleaded not guilty.

Complainant examined two witnesses including himself, as Pws.1 and 2 and got marked Exts.P1 to P5. The accused when questioned under Crl.A.1026/02 - 2 -

Sec. 313 of the Cr.P.C., maintaining his innocence contended that he had no transaction with the complainant and the cheque had been given as security in respect of a transaction over the sale of a vehicle between his son and the complainant. The cheque had not been given for presentation before the bank, and, further, a notice had also been issued to the complainant directing him not to present the cheque, was the case of the accused. To prove the defence so canvassed, he examined three witnesses as Dws.1 to 3 and got marked Exts.D1 to D4. The learned Magistrate, after appreciating the materials, found the case of the complainant reliable and acceptable and the defence version presented by the accused unworthy of any merit. In concluding so, the learned Magistrate found the accused guilty of the offence imputed and he was, thereupon, convicted and sentenced to pay a fine of Rs.40,000/- with default term of simple imprisonment for three months. Out of the fine amount, if realised, Rs.30,000/- was directed to be paid as compensation to the complainant. Challenging the conviction, the accused preferred an appeal and the learned Sessions Judge after re-appreciating the evidence was of the view that the conclusion reached by the learned Magistrate to hold the accused guilty of the offence under Sec. 138 of Crl.A.1026/02 - 3 -

the N.I. Act, in the proved facts of the case, was not justified. The defence case set up by the accused that he had no transaction with the complainant and Ext.P1 cheque had been issued as a security in respect of a transaction over the sale of a vehicle between the complainant and his son, after analyzing the materials produced by both sides, was found probable, and in that view of the matter conviction and sentence imposed against the accused were reversed and he was acquitted.

4. I heard the counsel on both sides. The learned Sessions Judge was not justified in interfering with the conviction founded against the accused by the learned Magistrate is the submission of the learned counsel. The discrepancy in the evidence of the complainant examined as Pw.1 that he had seen the accused writing the sum and date in the cheque whereas the instrument disclosed such entries were typed, it is submitted by the learned counsel, was given unmerited consideration by the Sessions Judge to doubt his testimony as a whole. He had given evidence after a long lapse of time, and also his age, was not taken into account by the learned Sessions Judge when that minor discrepancy was taken as a serious infirmity shattering the edifice of his case. Similarly, the Sessions Crl.A.1026/02 - 4 -

Judge, according to the counsel, went wrong in placing implicit reliance on the evidence of Dws.1 to 3 to hold that the accused had substantiated his defence or at least showed it was probable. The evidence of the defence witnesses were not subjected to critical scrutiny by the