JUDGMENT
M.R. Hariharan Nair, J.
1. The complainant in S.T. 50/1991 of the Court of Chief Judicial Magistrate, Thrissur is aggrieved that the complaint filed by him alleging offence under Section 138 of the Negotiable Instruments Act against the first respondent herein ended up in acquittal of the accused.
2. The allegation in the complaint was that the accused, who as a goldsmith, had taken loan of 150 gms of gold from the complainant, who was a gold dealer, agreeing to return the same in May, 1990; that there was failure in that regard based on which the matter was talked over and pursuant to settlement an agreement was executed on 29.9.1990 wherein the accused agreed to return the gold by 30.11.1990; that subsequently, on intervention of mediators, the accused issued three cheques of which Ext. P. 1 which is the subject-matter of the present case was one; that in due course the cheque was presented for payment and was dishonoured for want of funds and that in spite of Ext. P4 notice issued to the accused he failed to pay the amount.
3. The petitioner got himself examined as P.W.2. However, the Court was not impressed with the complainant’s case. On a consideration of the evidence of P.Ws.1 to 4 and Exts. P1 to P5 and based on the contents of Exts. D1 to D4, the complainant’s case was disbelieved.
4. The learned Counsel for the appellant submitted that in the nature of the case, the failure to produce the agreement or the note book in which the handing over of the gold was allegedly noted by the complainant are not material and that the finding in the impugned judgment that the issuance of the cheque was the result of police intervention and use offeree is absolutely unjustified. According to him the presumption arising under Section 139 of the N.I. Act stands rebutted and hence the impugned judgment is totally unjustified.
5. On the arguments advanced in the case, the points that arise for decision are :
(1) Whether Ext. P1 cheque was issued based on police intervention as alleged by the accused and in consequence of use of pressure ?
(2) Whether Ext. P1 was voluntarily issued to cover a legal liability ?
(3) Whether the accused has committed the offence under Section 136 of the N.I. Act ?
6. Point Nos. 1 and 2 : These two points are considered together for the sake of convenience. Here is a case where even before the cheque was presented for payment to the accused’s Bank, the accused had sent up Ext. D1 notice to the complainant alleging that the cheque was obtained on police intervention while at the Mathilakam Police Station based on the complaint made by the complainant (see Ext. D3 entry) and that the instrument was not executed voluntarily or in the normal course. It was specifically alleged that issuance of Ext. P1 was the result of threat of custodial assault and that in the circumstances the cheque was not validly executed and it should be returned to the accused.
7. In Ext. P4 reply sent by the complainant replying to Ext. D1, execution of an agreement on 29.9.1990 whereunder the liability for return of 150 gms. of gold was undertaken was asserted. The fact that the complainant moved the police alleging abuse and attempt at assault on the part of the accused arising from alleged demand for payment of the money covered by the agreement is also admitted in Ext. P4. The fact that both parties were summoned to the Police Station and advised by the Police is also admitted in Ext. P4. Ext. D3 also shows this. The proved circumstances are hence such that the defence case that the three cheques including Ext. P1 were issued under threat from the police is rendered probable.
8. During hearing, the learned Counsel for the respondent brought to my notice the judgment of this Court in Crl. A. 857/1995 wherein the entire history relating to the transaction between the parties is seen discussed. S.T. 175/1991 wherefrom that appeal arose was filed by the present complainant in consequence of dishonour of the other two cheques which admittedly were given by the accused to the complainant at the Police Station along with Ext. P1 cheque of this case. The finding in the said judgment is that the defence case regarding involuntary execution of the three cheques deserved to be accepted and that the defence case was more probable.
9. The evidence in the present case also leads me to take the same view. Prima facie, the circumstance leading to the issuance of the cheque is cloudy in view of the fact that it was given after police intervention. The dispute between the parties resulting in the issuance of the cheque viz. the transaction with regard to gold; is one of civil nature the police had no business to put pressure on the accused to execute cheques as alleged in Ext. Dl. It is to be reiterated here that Ext. Dl was issued not in answer to any notice demanding payment of the amount consequent on dishonour of cheque; but issued even before the cheque was presented for payment. Stop payment instruction was also issued to the accused’s Bank along with despatch of Ext. D1. Further, the complainant has withheld from production in Court very relevant evidence viz. the agreement of 29.9.1990 and the note book in which handing over of the gold to the accused was allegedly recorded by him.
10. It is true that a presumption would arise under Section 139 of the N.I. Act that the holder of the cheque received it for the discharge in whole or in part, of any debt or other liability. By producing before Court Ext. Dl notice and by getting the admissions with regard to the circumstances that prevailed at the time of issuing cheque by cross-examination, PW-1, the said presumption stands rebutted.
11. In the circumstances, I agree with the Court below that no criminal liability flows from the dishonour of Ext. P1 cheque and accordingly dismiss the appeal.