This appeal is directed against the order of acquittal passed by the Court of Judicial First Class Magistrate, Kunnamangalam in C.C.No.127 of 1999. The appellant herein was the complainant therein. He filed the private complaint against the accused, the first respondent herein alleging commission of offences punishable under Sections 138 and 142 of the Negotiable Instruments Act. The case of the appellant/complainant was as follows:- The accused/first respondent is known to him. The accused/first respondent borrowed an amount of ` 20,000/- with the promise to return the same within a month. Despite the lapse of the said period and repeated demands the amount borrowed was not returned. In discharge of the said legally enforceable debt the first respondent issued Ext.P1 cheque bearing No.765317 dated 29.12.98 for ` 20,000/- drawn on Canara Bank, Kadalundi Branch, Calicut to the complainant. The said cheque on its presentation for encashment was bounced on the ground of insufficiency of funds and consequently Ext.P3 lawyer notice was issued to the accused/first respondent intimating him of the bouncing of the cheque and requiring him to pay the due amount within the statutorily prescribed period. The first respondent failed to return the amount despite the lapse of the statutorily permissible period.
2. On due process the first respondent appeared before the court. The particulars of the offence were read over and explained to him and he pleaded not guilty. To prove the offence the appellant/ complainant was examined as PW1 and the Manager of Canara Bank, Kadalundi Branch was examined as PW2. Exts.P1 to P7 were marked on his side. After the closure of the evidence of the prosecution the accused/first respondent was questioned under Section 313 Cr.P.C. and he denied all the incriminating circumstances put to him. On the side of the defence/first respondent he was examined as DW2 and one Dayanandan was examined as DW1 and Ext.D1 was marked. After appreciating the evidence on record the trial court found that the appellant had failed to establish his case against the first respondent. It was found that the appellant had failed to prove that Ext.P1 cheque was issued by the accused for discharging a legally enforceable debt. Consequently, the accused was found not guilty under Section 138 of the Negotiable Instruments Act and acquitted under Section 255(1) Cr.P.C.. As noticed hereinbefore, this appeal is filed against the said order of acquittal under Section 255(1) Cr.P.C.
3. I have heard the learned counsel for the appellant, the learned counsel appearing for the first respondent and also the learned Public Prosecutor.
4. A scanning of the judgment would reveal that the trial court took into consideration the absence of pleadings in the complaint regarding the date on which the accused allegedly borrowed the amount. No reference regarding the place where the transaction of the amount was effected was also not made in the complaint. The appellant had not explained the reasons for the same. Evidently, after considering the evidence of PW1, DW1 and DW2 the trial court arrived at the conclusion that the version of the appellant that he had acquaintance with DW2 also could not be believed. I will consider the evidence available in this case. As noticed hereinbefore, the evidence on the side of the appellant consisted of oral testimonies of PWs 1 and 2 and documentary evidence of Exts.P1 to P7. The evidence on the defence side consisted of oral testimonies of DWs 1 and 2 and documentary evidence of Ext.D1. Evidently, after taking into consideration Exts.P1 to P7 the trial court found that Ext.P1 cheque was presented in bank within the period of its validity and that it was bounced due to insufficiency of funds in the account maintained by the accused. Taking into account the documentary evidence as also evidence of PWs 1 and 2 it is evident that the complaint was filed after complying with all the statutory requirements and that the cheque in question was bounced due to insufficiency of funds in the account maintained by the accused. Point Nos.2 and 3 formulated for consideration were as follows:-
“(2) Whether Ext.P1 cheque relied on was issued by the accused to the complainant for discharge of his debt or liability.
(3) Whether the accused committed the offence punishable u/s 138 of N.I. Act.”
True that, the presumption available under Section 118 of the Negotiable Instruments Act is a rebuttable one. But, unless the contrary was proved it is to be proved that the cheque in question had been made or drawn for consideration. Evidently, the accused/first respondent attempted to rebut the presumption. The accused denied the execution of Ext.P1 cheque in the light of the decisions of this Court in G.Gopan v. Tonny Varghese and Another (2007 (4) KHC 1051) and Santhi v. Mary Sherly (2011 (3) KLT 273). The admission of signature in a cheque leaf alone will not constitute admission of execution of the cheque. True that, in this case, the accused/first respondent admitted that it was he who put the signature in Ext.P1 cheque. But, at the same time, he disputed the execution of the cheque. The said decisions elaborately discussed the manner in which the burden is to be discharged by the complainant when once the execution of the cheque is denied by the accused. It is also held therein that the burden will be shifted on to the complainant when once the accused successfully discharged his burden to rebut the evidence. In other words, in such cases the onus is on the complainant to prove execution of the cheque. The mere production of a cheque or making of the cheque as an exhibit in the case would not amount to proof of execution of that cheque and the complainant has to prove the execution of the cheque. Apart from the oral testimony of PW1 there is nothing to prove the execution of the cheque. The question is whether the version of PW1/complainant is believable or not? Evidently, the trial court declined to believe the version of PW1. PW1, the complainant was a conductor in the Kerala State Road Transport Corporation. According to him, he was introduced to the accused by one Balakrishnan who was also a conductor in KSRTC. The said Balakrishnan was not examined as a witness in this case. A scanning of the evidence of PW1 would reveal that virtually, he was not aware about the whereabouts of DW2, the accused. The appellant did not have a case that he had any previous transaction with the accused and he did not have a case that he has given the money to DW2 for interest. In such circumstances, in the absence of any strong acquaintanceship with DW2 there could not have been any money transaction between the appellant and the accused. The evidence in this case would reveal that the appellant was not having that much acquaintance with the accused. It is in the said circumstances that the evidence of DWs 1 and 2 along with Ext.D1 assume relevance. DW2 attempted to set up a case that the cheque in question was actually handed over to DW1 as a security to a transaction where his son Biju borrowed a sum of ` 20,000/- from DW1 in the year 1998. Both DWs 1 and 2 deposed to that effect. It is admitted by DW1 that the cheque in question was issued as a surety in respect of the aforesaid transaction. It is also admitted that subsequently, the amount of ` 20,000 borrowed was repaid by DW2. The circumstances which incapacitated DW2 to return the documents as also the cheque were explained during the examination by DW1 as also DW2. The circumstances which led to the issuance of Ext.D1 was also explained. It is to be noted that in Ext.D1, Ext.P1 cheque was referred to. Ext.D1 is dated 15.11.1998 and admittedly, Ext.P3 lawyer notice was issued by the complainant intimating the accused regarding the bouncing of the cheque only on 20.1.1999. The appellant attempted to canvass the position that Ext.D1 is not reliable by contending that though the first respondent/DW2 was implicated as accused in C.C.No.301 of 1999 before the Court of Judicial First Class Magistrate-V, Kozhikode in a proceedings under Section 138 of the Negotiable Instruments Act he had not produced Ext.D1 there and ultimately he was convicted therein. Admittedly, that case was filed by another person by name Prabhakaran. It is to be noted that during the examination, DW2 has categorically deposed that he had not taken up any contention even in the other case that the cheque involved in that case was handed over to Dayanandan along with Ext.P1 cheque. It is to be noted that in Ext.D1 besides the reference to Ext.P1 cheque there is a reference about another cheque. Admittedly, the appellant had not established that the other cheque which is referred to in Ext.D1 is the cheque involved in the other case. If the case of the appellant is that Ext.D1 is a fabricated document he ought to have taken appropriate steps in accordance with law to establish the same. Evidently, in this case, no earnest effort was made by the appellant in that regard. In the said circumstances, I could not find any fault with the learned Magistrate in relying on the evidence of DW1 along with Ext.D1 and also the evidence of DW2. As noticed hereinbefore, despite the denial of execution of Ext.P1 cheque the appellant has failed to establish that Ext.P1 cheque was executed by the first respondent/the accused. When the defence set up a case which is believable it is for the complainant to prove otherwise. In this case, the appellant has failed to establish his case or to thwart the case of the defence. Even if it is treated that the appellant was entitled to the benefit of presumptions available under Sections 118 and 139, N.I. Act it has to be held in the circumstances relied on by the first respondent that he has succeeded in dislodging the presumptions. In such circumstances, the conclusion arrived at by the trial court that Ext.P1 cheque could not be said to be one which is issued by the accused in discharge of an enforceable liability also cannot be held as incorrect. Above all, the appellant had failed to establish that the first respondent had issued a cheque in discharge of any debt or liability. The discussion made as above would reveal that the appellant could not establish any error of law or perversity in the findings that infected the impugned order of acquittal. So also the appellant had failed to show that the conclusion arrived at by the trial court is against the weight of the evidence. I am of the view that the conclusion and the findings of the trial court is a plausible view in the light of the materials on record. In the said circumstances, I have no hesitation to hold that the appellant had failed to make out a case warranting interference with the order of acquittal.
In the result, this appeal is liable to fail and accordingly, it is dismissed.
TKS Sd/-
C.T.RAVIKUMAR Judge