V T MATHEW Vs. FR T H HOZAKIVIL

JUDGEMENT

(1.) THIS appeal is filed by the complainant in S.T. No. 937 of 1997 on the file of Judicial First Class Magistrate, Erattupetta. The first respondent herein is the accused in that case which was filed by the complaint alleging commission of an offence under Section 138 of N.I. Act.

(2.) THE allegation is that the accused borrowed an amount of Rs.2 lakhs from the complainant on 10.12.1996 and when the complainant demanded back that amount, the accused issued Ext.P1 cheque on 10-2-1997 for Rs.2 lakhs drawn on the Service Co - operative Bank, Melukavu and when the complainant presented the cheque for collection through his bank, it was dishonoured due to insufficiency of fund in the account of the accused. THE complainant sent a lawyer notice to the accused demanding the amount. But the accused did not repay the amount and thereby and accused committed an offence punishable under Section 138 of N.I. Act.

(3.) THE learned counsel for the appellant submitted that since the execution of Ext.P1 cheque is proved, the burden is on the accused to prove that the cheque was not issued in discharge of any liability and that the accused has not discharged that burden. Learned counsel for the appellant submitted that the learned Sessions Judge ought not have given much weight to the fact that there was some money transaction between the accused and the maternal grandfather of the complainant. THE learned counsel for the appellant submitted that even though that fact is true, that will not preclude the accused from borrowing money from the complainant. THE learned counsel for the appellant submitted that the learned Session Judge went wrong in finding that the accused rebutted the presumption available under Section 139 of N.I. Act. THE learned counsel for the first respondent supported the judgment of the Sessions Court.