SUSANNA GEORGE Vs. S.J. SURESH

JUDGEMENT

(1.) The complainant, aggrieved by the Judgment of the Trial Court, acquitting the accused, in a case related to the dishonour of the cheque, under S. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), has filed this appeal.

(2.) The case in the complaint was that the accused being a known person, borrowed Rs. 4,50,000/ - by assuring repayment within four months and after repeated request and demand, issued cheque (Ex. P1) i.e., towards repayment. The cheque was dishonoured by the bank with the endorsement insufficient fund' (Exs.P2 & P3). A notice demanding payment (Ex. P4) was issued. There was neither a reply nor payment of the cheque amount. Hence, private complaint was filed on 06.11.2008 and registered as PCR 55/2008. Cognizance was taken for the offence punishable under S. 138 of the Act and process was issued to the respondent in C.C. No. 117/2009 by the JMFC, Hunsur. The accused appeared and pleaded not guilty and claimed trial. Complainant deposed as PW -1 and marked Exs.P1 to P8. The accused was examined under S. 313 Cr.P.C. He denied the accusation and produced a document, which was marked as Ex. D1. The Magistrate having regard to the rival contentions and upon appreciation of the evidence and finding that the complainant has failed to prove that Ex. P1 was issued by the accused towards discharge of legally enforceable debt, by holding that the accused has shown that there does not exist any legally enforceable debt, acquitted the accused.

(3.) Learned advocate for the appellant contended that the learned Trial Judge has committed error in the matter of appreciation of the evidence and the presumption available under Ss. 118 and 139 of the Act having not been rebutted, the judgment of acquittal passed is illegal. Learned counsel submitted that the impugned Judgment being contrary to the record of the case and the law, is liable to be set aside and the respondent convicted for the offence punishable under S. 138 of the Act.