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TMI Blog2021 (5) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prosecution. Similarly, there is no substance in the contention that the appellant did not state the details of the transaction etc. By numerous authorities, it has been stated that such details are not necessary to be stated in the complaint. If it is proved that the cheque was executed and issued by the first respondent/accused in discharge of a legally enforceable liability, then the appellant is entitled to draw the presumptions. But here, the appellant has inherent weaknesses in his case. All the same, even if there are lapses in the defence version that cannot be taken use of by the appellant. Here the appellant has not established that the cheque was issued in a transaction as alleged by him and therefore, the presumptions under Sections 118 and 139 of the N.I. Act cannot be drawn in favour of the appellant. The facts of the case vis-a-vis the facts of the authorities relied on by the learned counsel for the appellant are clearly distinguishable. Here the very case of the first respondent is that he had not borrowed any amount from the appellant nor the Ext.P1 was given to the appellant - the appellant could not establish that there was long standing acquaintance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that period, the brother of the complainant, K.D. Sunil was also working there. Thereafter, he was transferred to Thripunithura. While working in Thripunithura, he had borrowed an amount of ₹ 10,000/- from Mathai@Mathew, a colleague and as a security for borrowing the amount he had handed over a signed cheque to the said Mathew. Thereafter, though the amount with interest was repaid, some dispute arose with regard to the payment of interest, thus the cheque was not returned. Thereafter, the said Mathew handed over the cheque to Sunil, through him it reached his brother, the appellant and by misusing the cheque a claim for ₹ 3,00,000/- has been made. According to the first respondent, the claim is not genuine. Thereafter, first respondent gave evidence as DW1. He gave a statement as given during the examination under Section 313(1)(b) of the Cr.P.C. At the time of examining PW1, the appellant had stated that the first respondent and the brother of the appellant were working together in the Fire Station near the Rama Varma Club. DW2, the Fire Station Officer was examined to belie this version. DW3 is the said K.D.Sunilkumar, the brother of the appellant. DW3 was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishna Menon [2010 (2) KLT 397] viii) Mohanan v. Bibhukumar [2003(1) KLT 604] and ix) Moideen v. Johny [2006(3) KLJ 48] 3. On the other hand, the learned counsel for the first respondent strongly defended the judgment of the trial court. According to him, the trial court has appreciated the case properly and reached the correct conclusion and acquitted the first respondent. The appellant had no consistent case even with regard to the date of transaction, he has given different versions with regard to the date of payment of money. Similarly, DW3, his brother gave yet another date as the date of transaction. The non-examination of one Ajimon, who is said to be the witness to the transaction also is fatal to the prosecution. According to the learned counsel, merely for the reason that the first respondent had admitted his signature on the Ext.P1 document that will not prove the execution and therefore, the trial court is not expected to draw the presumptions under Sections 118 and 138 of the N.I. Act. 4. I have carefully gone through the material records and evidence tendered by the parties. As noticed earlier, the definite case of the prosecution is that on 17.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the above said sections. Then only the accused/first respondent is expected to discharge the burden and rebut the presumptions that are drawn against him. Here certainly, the first respondent has denied the execution of the cheque. In other words, he has denied any money transaction with the appellant. Now the remaining question is whether the cheque is proved to have been executed by the first respondent. For the same, there is only the oral testimony of PW1. DW3, though said that he has knowledge about the transaction, he has no direct knowledge and his evidence is only hearsay, which cannot advance the case of the appellant. 6. As rightly noticed by the trial court, a consistent case cannot be inferred in the version of PW1, with regard to the transaction. PW1 was examined twice. At first, he said that the amount was handed over sometimes in January, 2008 and that the cheque was issued on 17.03.2008. But at the second phase of his examination, he said that the amount was handed over and the cheque was issued on the same day. In that way, there is some confusion as to when the actual amount was passed to the first respondent. Added to this, when the appellant gave evide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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