JUDGMENT
K.A. Abdul Gafoor, J.
1. An unsuccessful complainant in a case under Section 138 of the N.I. Act is the appellant. According to him he advanced a loan to the respondent. In repayment thereof the respondent issued Ext. P1 cheque dated 1.9.1996. When presented to the Bankers it bounced. Demand for repayment was not acceded to. It was in the above circumstances the complaint was filed. The defence offered was that he had issued a blank cheque on borrowal of only Rs. 4,500/- on 31.5.1996. The appellant had made use of that cheque for the purpose of this case. Therefore the cheque cannot be stated to be issued in discharge of the liability alleged. It is also submitted that out of the cheque leaves issued and produced as Ext. Dl series only Ext. P1 was made use of on 31.5.1996 when he is alleged to have availed of a loan of Rs. 4,500/- from the appellant. These are sufficient circumstances to rebut the presumption if any, that is arising out of issuance of the cheque.
2. The cheque was admittedly issued by the respondent. He is not disputing the signature thereon. The cheque returned for want of sufficient fund in the account maintained by the respondent/accused. There is a statutory presumption available in terms of Section 138 of the Negotiable Instruments Act against him. Thus whether there is sufficient evidence on the defence side in rebuttal of the statutory presumption is the question that is arising for consideration.
3. Apart from the interested testimony of the respondent that he borrowed only Rs. 4,500/- and in security thereof he gave the cheque, there is nothing else in support of his case. That is not sufficiently strong to rebut the statutory presumption available on the admission of the cheque. The Supreme Court in the decision in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. III , categorically held that:
….as the signature in the cheque is admitted to be that of the accused, the presumption envisaged under Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act (Negotiable Instruments Act) enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The Trial Court was not persuaded to rely on the interested testimony of DW1 to rebut the presumption.
Exactly same is the case here. Apart from the interested testimony of the respondent/ accused as DW1 there is nothing on record in rebuttal thereof.
4. The Apex Court in the decision reported in K.N. Beena v. Muniyappan and Anr. IV , has also made it clear that:
Under Section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under Section 139 (Negotiable Instruments Act), the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability.
5. Thus in a complaint under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. The presumption is rebuttable. The burden of proving that the cheque had not been issued in discharge of a debt or liability is on the accused. That burden is not discharged in this case as already discussed above.
6. In such circumstances when the cheque is admitted, when it is proved that it bounced for want of sufficient fund in the account maintained by the accused and when the demand for payment of the amount was not acceded to, necessarily unless the presumption is rebutted, it has to be taken as proved that the respondent had committed an offence punishable under Section 138. Accordingly, he is convicted for the said offence.
7. Anyhow, taking a lenient view, he is sentenced to undergo imprisonment for a day, till the rising of the Court on 10.8.2006, when he shall appear in the Trial Court and to pay a compensation of Rs. 20,000/- on or before the said date. In default of which he shall undergo simple imprisonment for 3 months. The compensation if collected shall be paid to the appellant.
Appeal is allowed as above.
