RAJMOHAN Vs. CHANDRIKA SHAJI

JUDGEMENT

(1.) The petitioner is the complainant in C.C. No.969 of 2008 of the Judicial First Class Magistrate Court-II, Kochi. The complaint was filed alleging commission of offence under Sec. 138 of the Negotiable Instruments Act by the first respondent. As per the averments in the complaint, the first respondent had borrowed an amount of Rs.4,00,000.00 from the complainant and towards discharge of that liability, had issued a cheque for Rs.4,00,000.00 drawn on the South Indian Bank, Pachalam Branch. The cheque, on presentation, was dishonoured for insufficiency of funds. Although a statutory notice demanding payment of the money due was sent, the accused did not reply to the notice or pay the amount.

(2.) In order to prove his case, the appellant gave evidence as PW1 and marked Exts.P1 to P6. While questioning under Sec. 313 Cr.P.C, the accused denied all incriminating circumstances brought out against her, but no defence evidence was adduced. The trial court, on appreciation of evidence and consideration of legal contentions, acquitted the accused under Sec. 255 (1) Cr.P.C. Hence, this appeal.

(3.) Adv.G.Krishna Kumar appearing for the appellant assailed the impugned judgment by contending that, in spite of the complainant having adduced evidence both oral and documentary, the trial court acquitted the accused based on surmises and conjectures. Even though the accused made an attempt to deny her signature, no steps to get the cheque examined by an expert was taken. As such, the execution of the cheque stood uncontroverted and hence, the presumptions under Ss. 118 and 139 of the NI Act got attracted. Even though the presumption can be rebutted based on the patent inconsistencies in the complainant's case and preponderance of probabilities, in the case at hand, the accused had miserably failed to point out any inconsistency or to set forth preponderance of probabilities. It is contended that rather than the complainant, it was the accused who had come forward with the inconsistent versions. At one stage, the accused denied her signature in the cheque. Later, she put forth a defence that the actual transaction was between the complainant and the husband of the accused and even later, she came forward with a defence that her signed blank cheque was misused by the complainant. It is contended that once issuance of the cheque and the signature is admitted, the complainant is entitled to get the benefit of presumption under Ss. 118 and 139 of the NI Act and such presumption cannot be rebutted by putting forward certain suggestions during cross-examination of the complainant. In support of the contention, reliance is placed on Sulochana Devi v. Baburaj V and Another (2016(1) KHC 134). Based on the decision in Gopakumar P v. B. Anil Kumar and Another (2011 (3) KHC 850), it is argued that when the accused has a case that the cheque was issued in a blank form with signature alone, burden is on the accused to prove that aspect.