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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.BADHARUDEEN
Wilfred Jose, S/o. Dennison – Appellant
Versus
Jayapal, S/o.Sreedhara Panicker – Respondent
Key Points: - (!) Complainant’s evidence establishing the transaction and execution of the cheque discharge the initial burden, triggering presumptions under Sections 118 and 139 NI Act. (!) - (!) Once initial burden is satisfactorily discharged, the presumptions arise and the accused must rebut them with evidence; acquittal is improper if the accused does not rebut the presumptions. (!) - (!) The appellate court allowed the appeal, set aside acquittal, and convicted the accused under Section 138 NI Act with sentence and compensation. (!) - (!) The trial court’s acceptance that the complainant’s evidence was insufficient to prove transaction is challenged; the appellate court found the evidence sufficient to prove transaction and execution of the cheque. (!) - (!) Complainant’s favorable own testimony regarding loan and cheque issuance is central to discharging initial burden. (!) - (!) The impugned acquittal required interference due to erroneous evaluation of evidence. (!)
JUDGMENT :
A.BADHARUDEEN, J.
Judgment of acquittal dated 15.06.2007 in C.C.No.588/2005 on the files of the Judicial First Class Magistrate Court-IV, Neyyattinkara, is under challenge in this appeal filed at the instance of the appellant, who is the complainant in the above case. The 1st respondent herein is the accused in the said case. The 2nd respondent herein is the State of Kerala, represented by the learned Public Prosecutor.
2. Heard the learned counsel for the appellant/complainant and the learned Public Prosecutor in detail. Perused the judgment under challenge and the records available.
3. I shall refer the parties in this appeal as ‘complainant’ and ‘accused’ hereinafter, for easy reference.
4. Coming to the genesis of the case, the complainant had filed a complaint before the Judicial First Class Magistrate Court-IV, Neyyattinkara, alleging that the accused, who is the 1st respondent herein, committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short). The precise allegation is that when the complainant presented Ext.P1 cheque dated 10.02.2004 for Rs. 3,00,000/- (Rupees three lakh only), issued by the a
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