Judgment · High Court · 2006

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A. No. 142 of 2002 (C) - - - - - - - - - - - - - - - - - - - -Dated this the 18th day of October, 2006J U D G M E N TThe complainant in C.C.No.154/2000 of JudicialMagistrate of the First Class, Kayamkulam, is the appellant. Hepreferred a complaint before the court below under Section 138 ofthe Negotiable Instruments Act, in short 'the Act', as Exhibit P1cheque, issued in favour of the complainant, for an amount ofRs.2,00,000/- was returned dishonoured and the demand of theamount through Exhibit P4 notice, was not met by the firstrespondent, accused. The appellant entered the box and wasexamined as PW.1. He marked 4 documents. Exhibits X1 to X3were also brought into evidence.2.The learned Magistrate framed the following fourpoints:- i.Whether the accused had drawn Ext.P1cheque towards the discharge of theamount mentioned in it?ii. Whether it was bounced for want ofsufficient funds in the account of theaccused?iii. Whether the complainant has compliedwith all the statutory formalities on Crl.A. No. 142 of 2002 (C)2dishonour of the cheque?iv. The offence committed and punish-ment to be imposed.3.Discussing point Nos.2 and 3 together at paragraph12, the learned Magistrate found those points in favour of thecomplainant. However, under point No.1, the learned Magistratehad held that:- “when the accused has specifically disputedthe source of the income to part with such ahuge amount of Rs.2 lakh as claimed, it wasthe duty of the complainant to adduceevidence in respect of that since thecomplainant has specifically taken a stand thathe had received that much amount 3 daysprior to the transaction from his employer andhe had received the salary from the sameemployer on issuing voucher. Hence, he couldnot have produced the documents to prove hissource of income. An adverse inference canbe drawn against him due to the non-production of the available records.” Crl.A. No. 142 of 2002 (C)3The court also further found that:- “from the above discussed evidence the morebelievable story is that of the accused that thecomplainant was also a subscriber of thechitty and in connection with that a blankcheque was handed over to the complainant. The source alleged by the complainant to partwith the huge amount of Rs.2 lakh is not abelievable story. Hence, I hold that theaccused has rebutted the presumption u/s.139of the Act. Hence I find point No.1 against thecomplainant.”4.In a proceedings under Section 138 of the Act, it isnot necessary for the complainant to allege the details of theoriginal transaction as it is to be presumed to have been issued forconsideration unless rebutted by evidence. In Section 313 Cr.P.Cstatement, the accused has stated that he has not received anymoney from the petitioner, but he issued Exhibit P1 cheque, dulysigned by him. Thus, the execution of the cheque is admitted. Insuch circumstances, it is for the accused to establish that, under Crl.A. No. 142 of 2002 (C)4what circumstances, the cheque has been issued.5.The accused has not entered the box and adducedany evidence. To rebut the presumption available in favour of theappellant-complainant, the source of the amount transacted neednot be proved by the complainant unless the same is rebutted by theaccused, see Joseph Jose v.Baby [2002(2) KLT SN.64], at page 46.In K.N.Beena vs. Muniappan [AIR 2001(SC) 2895], the Apex Courtheld that the accused has to prove during the trial by leadingevidence that there was no debt or liability while issuing a cheque.In view of the above legal position, the learned Magistrate waswrong in holding that the source of the transaction was not provedby the appellant-complainant.6.Point No.4 was not considered by the learnedMagistrate as point No.1 was found against the appellant. In viewof the above principles of law and facts, the findings of the learnedMagistrate under point No.1, is not sustainable. Hence, I set asidethe same. In the light of the above discussions, I hold that thepoints 1 to 3 have been found in favour of the appellant-complainant.7.Though the notice was issued to the first Crl.A. No. 142 of 2002 (C)5respondent-accused, he has chosen not to appear before this court. Therefore, I heard the arguments advanced by the counsel for theappellant. In the above fact situation, I set aside the findings underpoint No.4 and the acquittal of the accused. C.C.No.154/2000, isrestored to the file of the Judicial Magistrate of the First Class, Kayamkulam. 8.The parties shall appear before the court below on23/11/2006. 9.The learned Magistrate shall hear the firstrespondent-accused and enter a finding on point No.4 also, in thelight of the discussions held above. After arriving at a finding onpoint No.4, the learned Magistrate shall dispose of the same as perthe law. This disposal shall be as early as possible, in any case, within two months from the date of appearance of the parties.(J.M.JAMES)Judgems Crl.A. No. 142 of 2002 (C)6J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A. No. 142 of 2002(C) - - - - - - - - - - - - - - - - - - - - J U D G M E N T 18th October, 2006