TMI Blog2019 (9) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not warrant any interference by this Court in appeal - appeal dismissed. - CRL.A. No.1300 OF 2008 - - - Dated:- 19-9-2019 - MR R. NARAYANA PISHARADI, J. For The APPELLANT : ADV. SRI.GEORGE SEBASTIAN For The RESPONDENTS : BY ADV.SRI.ABRAHAM MATHEW VETTOOR AND SRI SRI. E.C.BINEESH -P.P JUDGMENT The appellant is the complainant. Challenge in the appeal is directed against the acquittal of the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant, as stated in the complaint, is as follows: The accused issued a cheque dated 20.05.2004 for ₹ 1,70,000/- in favour of the complainant towards discharge of a legally enforceable debt. The complainant presented the cheque in the bank. The cheque was dishonoured for the reason that payment was stopped. The complainant received intimation regarding the dishonour of the cheque on 09.09.2004. He sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and three other persons trespassed into his shop and forcibly took his cheque book and threatened and compelled him to sign two cheque leaves. Unable to resist them, he signed the cheque leaves. The complainant has misused one of the cheque leaves and filed the complaint. The partner of the complainant has filed another case against him by misusing the other cheque leaf. 8. When examined as PW1, the complainant gave evidence in examination-in-chief (proof affidavit) that the accused issued Ext.P1 cheque dated 20.05.2004 to him for discharging the legally enforceable debt due to him. 9. PW1 has stated on cross-examination that the accused signed Ext.P1 cheque in his presence and gave it to him. In reexamination, he reiterated so. 10. The trial court has found that the signature in Ext.P1 cheque alone belongs to the accused and that the other entries in the cheque are in a different handwriting and that the complainant has no definite case that the cheque was filled up in his presence and it creates doubt as to the execution of the cheque by the accused. 11. A person who signs a cheque and makes it over to the payee r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the evidence of DW1 and Exts.D4 and D5 documents to prove his plea. 14. DW1 is said to be a person who was employed in the shop of the accused during the period from January, 2004 to February, 2005. He has given evidence that, one day, during the aforesaid period, the owner of 'Royal Associates' and four other persons came to the shop and they opened the drawer of the table in the shop and took two cheque leaves and forcibly made the accused to sign them. 15. The evidence of DW1 in examination-in-chief that the complainant and his partner, by force, got two blank cheque leaves signed from the accused, has not been effectively challenged in the cross-examination. Not even a suggestion was made to DW1 in the cross-examination that no such incident took place. Nothing was brought out in the cross-examination of DW1 to discredit his evidence regarding the said incident. 16. Ext.D4 is the copy of the complaint alleged to have been given by the accused, against the complainant and his partner, to the Circle Inspector, Central Police Station, Ernakulam. Ext.D5 is the copy of the complaint given by the accused, against the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can show that consideration and debt did not exist. He may also show that, under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. An accused is not expected to prove his defence beyond reasonable doubt. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. But, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of passing of consideration and existence of debt, would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumption, the accused should bring on record, such facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint or the notice regarding the nature of the debt or liability of the accused, does not affect the maintainability of the complaint or the validity of the notice. But, absence of averments in the complaint as to the details of the transaction between the complainant and the accused, in which the accused incurred the debt or liability, or the nature of the debt or liability of the accused, affects the credibility of the evidence subsequently adduced by the complainant regarding any such transaction. It affects the credibility of the case set up by the complainant against the accused. In the instant case, the complaint does not disclose that there was a loan transaction between the complainant and the accused. The date on which the accused borrowed the amount from the complainant, the date on which he gave the cheque to the complainant and the date on which the complainant presented the cheque in the bank are also not mentioned in the complaint. Absence of such details in the complaint affects the credibility of the evidence given by the complainant (See Vijay v. Laxman : (2013) 3 SCC 86 and Divakaran v. State of Kerala : 2016 (4) KHC 901) . 23. Secondly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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