K.S. Reghunathan Nair, Kolathumaliyil Veedu, Panayakuzhippu, Kottayam - 1 (Now Residing at Kakkanattu House, Mangalam Kalungu Junction, Ettumanoor vs Vasudevan, Keecheriyil Veedu, Lalsadanam, Ponkunnam P.o. and State of Kerala

Justice N.K. Balakrishnan

This appeal is by the complainant. He filed a complaint under Sec. 138 of N.I.Act against the respondent alleging that the respondent had borrowed from him Rs. 2.5 lakhs and to discharge that debt, Ext. P1 cheque was issued, which on presentment was dishonoured, pursuant where to statutory notice was sent, but the accused failed to pay the amount. The complainant got himself examined as PW 1 and Exts. P1 to P10 were marked. The accused got himself examined as DW 1 and Exts. D1 to D3 were marked. The learned Magistrate after analysing the evidence found that Ext. P1 cheque was signed by the accused and that the transaction averred in the complaint is unacceptable. It was further found that the case of the accused that he had borrowed Rs. 75,000/- in 1997 and the said amount including the interest thereon was discharged as per Exts. D1 to D3, the receipts written and issued by the complainant is more probable and reasonable. Accepting that version, the learned Magistrate acquitted the accused under Sec. 255(1) Cr.P.C.

Learned counsel for the complainant/appellant submits that since the execution of Ext. P1 is not practically denied by the accused, the burden is on the accused to discharge the presumption under Sec. 139 of N.I.Act. Exts. D1 to D3, the receipts relied upon by the accused would show that the amounts mentioned therein were repaid to PW 1 in respect of the cheque bearing No. 183664 whereas Ext. P1 bears the number 183665. Therefore, the court below should have found that the plea of discharge set up by the accused is untenable and that it has nothing to do with the amount covered by Ext. P1 and payable by the accused, the learned counsel submits.

Learned counsel for the respondent/accused submits that even in Ext. P7, the reply notice sent by the accused, the circumstances which led to the borrowal of Rs. 75,000/- in the year 1997 and the factum of issuance of two cheques as security for the due repayment of the loan amount and interest and all other receipts were detailed. But, in the complaint, nothing was stated as to the correctness or otherwise of the plea raised by the accused in Ext. P7 reply notice. It is also pointed out that Ext. P8, the cheque issue register produced by the complainant would show that the cheques bearing Nos. 183661 to 183670 were issued in the year 1996 which would perforce probabilise the case of the accused that two cheque leaves bearing Nos. 183664 and 183665 were given by the accused to PW 1 when he had borrowed Rs. 75,000/- in 1997.

Though PW 1 claims to be an income tax payee and claims to be maintaining the accounts relating to the business transactions and other transactions, he has candidly admitted that the lending of money stated in the complaint will not find a place in the said account. Though he says that earlier the accused had borrowed Rs. 2 lakhs in 1999 and that amount was repaid by the accused and was reposing confidence he again lent Rs. 2.5 lakhs to the accused, he has admitted that no such transaction would be found in place either in the account of the shop or his other account. He has admitted that the accused had given him only one cheque. An attempt was made by the accused when Exts. D1 to D3 were pressed into service that the amounts covered by Exts. D1 to D3 were the amounts repaid by the accused in respect of earlier transaction. But, as the complainant himself says that no cheque was issued in respect of the earlier transaction, the accused cannot successfully contend that Exts. D1 to D3 were pertaining to another transaction in respect of which cheque bearing No. 183664 was issued. On the other hand, it would only probabilise the case of the accused that when he had borrowed Rs. 75,000/- from the complainant in 1997, the complainant obtained two cheques as security and it was the number of one of those cheques mentioned by the complainant in Exts. D1 to D3. It is true that when PW 1 was in the witness box Exts. D1 to D3 were not confronted to him. That should have been done. But that cannot in any way come to the rescue of the complainant since the complainant had sufficient opportunity to get himself recalled and examined to explain the circumstances leading to the issuance of Exts. D1 to D3, had those receipts been not issued in connection with the transaction pleaded by the accused. There are so many other aspects also which would run counter to the case pleaded by the complainant. Even in Ext. P7 reply notice, it was stated that cheques which were handed over by the complainant bore the numbers 183664 and 183665 and that the complainant presented the cheque bearing No. 183665 by filling it up should have made the complainant alert to explain in the complaint and also to give the evidence controverting those allegations. That was not done. The learned Magistrate had the opportunity to assess the evidence given by PWs. 1 and 2 and the documents produced by the parties. The finding entered by the court below is more reasonable and probable. I find no reason to interfere with the same. The verdict of acquittal is only to be confirmed.

This Crl. A. is hence dismissed.