SASSERIYIL JOSEPH Vs. DEVASSIA

JUDGEMENT

(1.) This appeal has been preferred by the complainant in C.C.No. 449/91 on the file of the Judicial First Class Magistrate, Mattannur, against the judgment of acquittal passed by the Additional Sessions Judge, Thalassery in Cri. Appeal No. 212/92 dated 28-8-1993. The case arose on a complaint filed by the appellant herein against the respondent alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act. After the trial, the Magistrate found the respondent (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and convicted him. He was sentenced to pay a fine of Rs. 15,000/-, in default to undergo rigorous imprisonment for three months. Aggrieved by the order of conviction and sentence, the respondent herein preferred Cri. Appeal No. 212 of 1992. The learned Additional Sessions Judge set aside the conviction and sentence imposed upon the respondent and acquitted him. Aggrieved by the order of acquittal passed by the learned Additional Sessions Judge, the complainant has come up with this appeal.

(2.) The case of the complainant in brief is that the accused in discharge of a loan of Rs. 12,000/- advanced by the complainant issued a cheque dated 25-8-1991 for the said amount and the said cheque when presented for encashment was dishonoured by the Bank due to insufficiency of funds in the account of the accused. Thereafter, the complainant sent a legal notice to the accused demanding payment of the amount mentioned in the dishonoured cheque within 15 days from the date of the notice. But, the accused was not prepared to comply with the notice. Thereupon, proceedings were initiated against the accused before the Magistrate, alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act.

(3.) The accused pleaded not guilty. He contended that he had borrowed only an amount of Rs. 10,000/- from the complainant in October, 1987 and, the said amount with interest was paid back in April, 1990. However, he admitted that he issued the cheque in question for Rs. 12,000/- under duress and threat from the police.