R SIVARAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) An unsuccessful complaint in a case under Section 138 of the N.I. Act is the appellant. According to him he advanced a loan to the respondent. In repayment thereof the respondent issued Ext.P1 cheque dated 1.9.1996. When presented to the bankers it bounced. Demand for repayment was not acceded to. It was in the above circumstances the complaint was filed. The defence offered was that he had issued a blank cheque on borrowal of only Rs. 4500/- on 31.5.1996. The appellant had made use of that cheque for the purpose of this case. Therefore the cheque cannot be stated to be issued in discharge of the liability alleged. It is also submitted that out of the cheque leaves issues and produced as Ext.D1 series only Ext.P1 was made use of on 31.5.1996 when he is alleged to have availed of a loan of Rs. 4500/- from the appellant. These are sufficient circumstances to rebut the presumption if any, that is arising out of issuance of the cheque.

(2.) The cheque was admittedly issued by the respondent. He is not disputing the signature thereon. The cheque returned for want of sufficient fund in the account maintained by the respondent/accused. There is a statutory presumption available in terms of Section 138 of the Negotiable Instrument Act against him. Thus whether there is sufficient evidence on the defence side in rebuttal of the statutory presumption is the question that is arising for consideration.

(3.) Apart from the interested testimony of the respondent that he borrowed only Rs. 4500/- and in security thereof he gave the cheque, there is nothing else in support of his case. That is not sufficiently strong to rebut the statutory presumption available on the admission of the cheque. The Supreme Court in the decision in K.Bhaskaran v Sankaran Vaidhyan Balan & anor (1999(7) SCC 510) categorically held that;