IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 CRL.A.No. 278 of 2001() ----------------------- ST.314/1998 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... APPELLANT: ---------------- M/S.LAKSHMI TRADERS, CALICUT, REPRESENTED BY ITS PROPRIETOR, O.VIJAYAN, S/O.M.V.GOPALAN. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: --------------------- 1. P.RAMA KRISHNAN, S/O.APPUTTY, AJI NIVAS, THIRUTHIVALAPPIL, PAYYANAKKAL, P.O.KALLAI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.C.SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.A.NO.278 of 2001 ----------------------------------------- Dated this the 31st January, 2008 JUDGMENT This appeal arises from an order of acquittal, passed by the Chief Judicial Magistrate Court. Appellant is the complainant and first respondent is the accused. The alleged offence is under Section 138 of the Negotiable Instruments Act (for short, 'the NI Act'). 2. According to complainant, the complainant is conducting a wholesale and retail business in textile and the first accused used to purchase goods on credit from his shop. Towards the said business transaction, accused owed an amount of Rs.65,000/- to the appellant. To discharge the said liability, he issued Exhibit P1 cheque dated 2.4.1998 to the complainant which was dishonoured, on presentation to the bank for want of sufficient funds in the account maintained by the accused. Notice was issued and reply was also sent. But, no amount was paid and a complaint was filed. 3. The evidence in this case consists of oral evidence given by PW1 and DW1 and Exhibits P1 to P6, D1 series and D2 on the side of prosecution and defence respectively. On an analysis of the Crl.A.NO.278/01 2 evidence, the court below found that the complainant has not discharged the burden of proof and he has not succeeded in proving that there is legally enforceable debt and that Exhibit P1 was issued for discharge of that liability. The trial court also found that the accused has only admitted the signature in the cheque and explained the circumstances, under which the signed instrument happened to be with the payee. Once it is explained, according to the court below, the burden will shift to the complainant to prove due execution of the negotiable instrument. 4. On going through the complaint, evidence and the entire records, I do not find any ground to reverse the findings of fact entered into by the court below. The trial court has correctly found that the burden of proof has not been discharged by the complainant. Even if there are views possible, the appellate court cannot substitute its own views with the views of the trial court to reverse the order of acquittal. According to complaint, there is business transaction between complainant and accused. This fact is admitted. But when exactly the liability arose and towards which liability Exhibit P1 cheque was issued etc. are not established by the complainant satisfactorily. Being a business transaction, there will be ample documentary evidence to prove the details of the liability. Since the liability allegedly arose on account of purchase Crl.A.NO.278/01 3 of goods on credit, it is only natural that the seller would maintain some account to evidence details of the transaction. But, no documents were produced by complainant to prove the liab'ility. 5. A mere admission of signature in the cheque alone will not lead to the inference that the cheque was issued for the discharge of the liability which is quantified and recorded in the cheque. The contention raised that the court below went wrong in putting the burden of proof on the complainant as to the existence of a liability also is unsustainable. The burden is always on the complainant to prove all the ingredients of Section 138 of the NI Act. To a limited extent, complainant can take aid of the presumption available under Section 139 of the NI Act but to draw the presumption, the complainant should satisfy that all the pre-requisites for drawing presumption exist. But on facts, the complainant has thoroughly failed to establish the same and discharge his burden to prove the offence. The mere production of a cheque and a vague statement that this was issued for the discharge of a liability on account of a business transaction is too insufficient to establish a criminal offence against a person. 6. In this regard, it is also relevant to note that the complainant has not proved the reason for dishonour of the cheque. The fact that there was insufficiency of fund in the account Crl.A.NO.278/01 4 maintained by the accused has not been proved. The production of records from the bank will not be sufficient to prove the said fact. The production of dishonour memo will only lead to the presumption regarding the fact of dishonour of the cheque but, it will not further prove the reason for the dishonour. Both are different facts which are to be undependently established by the complainant. The production of dishonour memo will not prove this fact. 7. The court below has, therefore, not committed any error or illegality in acquitting the accused. The findings cannot also be said to be perverse. There is absolutely no ground to interfere with the order of acquittal. This appeal is dismissed. K.HEMA, JUDGE vgs. Crl.A.NO.278/01 5 K.HEMA, J. ------------------------------ Crl.A.NO.278 OF 2001 ------------------------------ JUDGMENT 31.1.2008