JOHNSON SCARIA Vs. STATE OF KERALA

JUDGEMENT

(1.) When can the burden on an accused under Section 139 of the N.I. Act be said to be discharged What is the nature of the burden on a complainant and an accused in a prosecution under Section 138 of the N.I Act Is the decision of the 3-Judge Bench of the Supreme Court in Hiten P. Delal v. Bratindranath Banerjee in any way altered or changed by the subsequent decision of the Supreme Court in Narayana Menon v. State of Karala 2006 (3) KLT 404 (SC) These are the interesting questions that arise for consideration in this revision petition.

(2.) The complainant alleged that Ext.P1 cheque for Rs. 1,96,750/- was issued to him by the petitioner for the discharge of a liability arising in a loan transaction. In the complaint or in the notice, he did not plead the details. He only averred that the cheque was issued by the accused for the discharge of a liability, which he owed to the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds. Notice of demand was duly despatched received and acknowledged. It did not evoke any response. Of course later, long after the commencement of the prosecution, Ext.D1 notice was allegedly issued by the accused inter alia to the complainant also. The complainant after scrupulously observing the statutory time table came to court with the present complaint under Section 138 of the N.I. Act.

(3.) The complainant examined himself as PW.1 end proved Exts.P1 to P7. Though the notice of demand did not evoke any response, the accused in the course of cross examination of the complainant advanced a contention that as a matter of fact only an amount of Rs. 75,000/- was borrowed by the petitioner from the complainant and there was no transaction to discharge which the cheque for an amount of Rs. 1,96,750/- could have been issued on 31.8.2002. Of course one cannot afford not to take note of the incongruity in the stand taken by the petitioner in the cross examination of PW.1. When the complainant was cross examined initially the specific contention was that an amount of Rs. 75,000/- was borrowed and 3 cheques were issued by the accused to the complainant. But later when the complainant was recalled and further cross examined, a different stand was taken. The petitioner sticks to that later stand in this revision petition.