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TMI Blog2007 (11) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial court. Challenging the above order of the lower Appellate Court, the complainant initially filed Crl. M.C. No. 4122 of 2000 for leave of this Court which was granted on 11-8-2000 and thus, this appeal is preferred against the judgment of the lower Appellate Court. The case of the appellant/complainant is that the accused borrowed a sum of ₹ 2 lakhs from the complainant promising to repay the same amount on demand for which Ext. P1 cheque dated 10-11-1995 was issued. The cheque was drawn from the account maintained by the accused in the Angamaly Branch of Federal Bank Limited. On presentation of the cheque for encashment, the same was returned on 12-12-1995 for the reason 'funds insufficient'. Consequently, the complainant had caused to send a lawyer notice on 22-12-1995 which was received by the accused. Then the accused sent a reply denying the transaction and according to the complainant, it was only false allegation and contention. Thus, according to the complainant, though a statutory notice was issued, no payment was effected within the statutory period and hence the accused has committed the offence punishable under Section 138 of the N.I. Act. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no evidence that the said cheque was issued for payment of any amount to the complainant in discharge of any debt or liability. Therefore, it was found that Ext. P1 cannot be termed as a cheque of the nature referred to under Section 138 of the N.I. Act. Hence, according to the court below, the complainant is not entitled to the court below, the complainant is not entitled to the presumption available under Section 139 of the N.I. Act. The lower Appellate Court had also found that the dishonour of Ext. P1 cheque for want of sufficient funds in the account on which it was drawn, issuance of notice demanding payment of Ext. P1 cheque, non-payment of the amount even after receipt of notice by the accused etc. did not assume any importance in the light of the earlier findings of the court. Thus, the lower Appellate Court had specifically found that the complainant had failed to make out a case punishable under Section 138 of the N.I. Act and accordingly, the conviction and sentence imposed against the accused had been set aside. Aggrieved by the above findings, appellant/complainant has filed this appeal. 4. I have heard the learned counsel for the appellant, the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly acquitted. 7. It is the above order of acquittal challenged in this appeal and it is argued that the above order of acquittal shall be set aside and the order of conviction and sentence passed by the trial court shall be confirmed. 8. Before going into the above legal question, it would be beneficial to examine the facts involved in the case so as to appreciate the legal question in its correct perspective. 9. The only case put forwarded by the complainant in his complaint is that the accused had borrowed a sum of ₹ 2 lakhs from the complainant for his business purpose with a promise that the amount would be repaid on demand by the complainant and thus, the cheque in question was issued, which was dishonoured when presented for encashment for the reason that 'funds insufficient'. Thus according to the complainant, statutory notice was sent, which was also not honoured and no amount was paid within the stipulated time and therefore, he approached the trial court by filing the complaint. During his chief examination, nothing more was stated and he had strictly deposed only in accordance with the versions contained in the complaint. During the cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque in question contained the signature of the account holder, it is for the accused to explain the same, but merely because Ext. P1 cheque contained the signature of the account holder or the accused, it cannot be said that the same was executed by him. In this case, it is relevant to note that the accused has specifically denied the execution of the cheque and the case advanced by him is that Ext. P1 cheque was entrusted with the complainant and the cheque contained nothing more than his signature. So, on the basis of the above admission, counsel for the appellant/complainant submits that the complainant is entitled to get the benefit of presumption envisaged by Sections 118(a) and 139 of the N.I. Act. On the other hand, counsel for the respondent/accused submitted that the presumption regarding consideration can be drawn under Section 118(a) only when the execution is proved and therefore, it is clear that passing of consideration and the existence of debt are not proved by the complainant. No doubt, it is the duty of the complainant to establish all that ingredients of Section 138 of the N.I. Act in order to canvass a conviction against the accused. Section 138 contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not consist of merely signing of a blanker paper. In another decision reported in Thankurlal v. Ramadhar (1968 ALJ 480), it had been held that mere admission of putting of signature and thumb mark on a blank sheet of paper is not admission of execution of the document. In the present case, the accused did not dispute the signature in Ext. P1 cheque, but his specific case is that he had entrusted with the complainant Ext. P1 blank cheque which contained his signature. It is brought out through evidence that the complainant does not remember that when Ext. P1 cheque was given to the accused. According to him, the amount and the date shown in the cheque might have been written by any member of the family of the accused or his friend. The complainant is also not aware as in whose handwriting, the cheque was written. Therefore, it is crystal clear that the complainant is not aware of the execution of Ext. P1 cheque. When the execution of the cheque is denied by the accused, it is for the complainant to establish the same. In the absence of any positive evidence regarding the execution of the cheque by the accused, it is to be held that the accused had issued only blank cheque and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But, under S. 114 of the Evidence Act, appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered . In the present case, on an appreciation of entire factual situation and the materials on record, it cannot be said that the complainant has discharged his burden in proving the execution of Ext. P1 cheque and therefore, I am fully endorsing the reason given by the lower appellate court for coming to the conclusion that the complainant has failed to prove the execution of Ext. P1 cheque. 15. Another point argued by counsel for the appellant is that he is entitled to get the benefit of presumption envisaged by Section 118 of the N.I. Act. Stressing on the admission at the side of the defence regarding the signature on Ext. P1 cheque, the counsel argued that under Section 118(a) of the N.I. Act, it is to be presumed that consideration has passed during the transaction and therefore, the reasoning given by the court below is unacceptable and liable to be rejected. In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials available on records are not sufficient to show the discharge of the initial burden on the complainant/appellant to establish a presumption under Section 139. The burden of rebutting the presumption will be shifted to the accused only when the complainant/appellant has discharged his initial burden. A decision reported in Johnson Scaria v. State of Kerala (2006(4) KLT 290 = 2006(3) KLJ 561) is cited by the appellant for canvassing the proposition that law does not mandate proof of original transaction or existence of original consideration and the courts are not bound to adjudicate on the liability under the cheque in dispute. It is true that the court is not bound to adjudicate on the liability under the cheque in dispute, but when the court is confronted with the question regarding the penal liability arising under Section 138 of the N.I. Act, especially when the execution of the cheque itself is disputed and not proved, the court has to consider the transaction for arriving at a safe conclusion. In the present case, the execution itself is not proved by the complainant and therefore, the presumption under Section 139 is not available to him. Even if the initial burden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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