G. MANOHARAN Vs. SELVIN SHABU. D

JUDGEMENT

(1.) The appellant is the complainant in CC No. 998 of 1996 the proceedings initiated under S.138 of Negotiable Instruments Act, with respect to dishonour of cheque for Rs. 40,000/-. The accused stands acquitted by the Court below on the ground that the complainant failed to establish that the cheque was dishonoured for want of sufficient funds in the account of the accused.

(2.) The case of the complainant is that the accused borrowed a sum of Rs. 40,000/- on 15/06/1994 and issued a cheque dated 15/06/1996 drawn on State Bank of India Kuzhithura Branch and that the cheque when presented for encashment got bounced for the reason 'insufficient funds'. Lawyer notice was sent. It is the case that the lawyer notice for demand of payment was received but no amount was paid. Proceedings were initiated in time and in compliance of S.138 and 142 of the Negotiable Instruments Act. The evidence adduced consisted of the testimony of PW 1, Exts. P1 to P5, that included postal receipt and acknowledgment card of the statutory notice sent.

(3.) It is not disputed that in Ext. P2 cheque dishonour memo, the reason for dishonour is mentioned as funds insufficient which is evidenced by the documents produced. When questioned under S.313 CrPC, the accused denied the incriminating portions of evidence put to him and stated that there was sufficient funds in his account at the time when the cheque was presented. The accused in this case was examined as DW 1. It is the case of the accused that the cheque was issued as security with respect to a visa transaction. The amount was repaid by the person who was liable for the same and that the cheque issued as security was not returned, though demanded. According to him, he was just an intermediary of the complainant and one Karunakaran Nair, who had arranged the visa for the complainant. The burden is on the accused to rebut the presumptions under S.118(a) and 139 of Negotiable Instruments Act, once the execution of cheque is established. The same stands established by the evidence of PW 1 and Exts. P1 to P5. The only evidence adduced by the defence is the version of DW 1- the accused, which is only self serving in nature.