M. SURESHCHANDRA SHETTY Vs. MOHAMMED KASIM

JUDGEMENT

(1.) JUDGMENT K.N. KESHAVA NARAYANA, J. This appeal filed under Section 378(1) and (4) of Cr.P.C. on obtaining special leave of this Court, is directed against the judgment dated 3.8.2004 passed by the V JMFC, Mangalore, in C.C. No. 1856/2003 dismissing the complaint filed by the complainant herein for the offence punishable under Section 138 of the Negotiable Instruments Act ( for short, 'N.I. Act ™) and acquitting the respondent -accused of the said offence.

(2.) SRI . M. Lokayya Shetty, the father of the petitioner herein filed a complaint under Section 138 read with 142 of the N.I. Act and Section 200 of Cr.P.C. against the respondent alleging the offence punishable under Section 138 of the N.I. Act, inter alia contending that for discharge of the debt due by him, the accused issued the cheque in question to the complainant for a sum of Rs. 1,50,000/ - and when the said cheque was presented for encashment, the same was returned with the Banker ™s endorsement 'Account closed ™ and in spite of service of notice, the accused failed to pay the amount covered under the cheque. The respondent -accused pleaded not guilty for the accusation made against him and claimed to be tried.

(3.) THE respondent -accused during his examination under Section 313 of Cr.P.C. denied all the incriminating circumstances appearing against him. His principal defence was that, earlier, there were some monetary transactions between him and the original complainant and at the time of availing the loan, he had delivered a blank cheque to the original complainant as security and subsequently, the said cheque has been misused by the original complainant. It was also his defence that no notice as required under Section 138(b) of the N.I. Act was served on him. In respect of his defence, the respondent -accused examined himself as DW. 1 and also examined one more witness as DW.2.