K C PADMANABHAN Vs. T N PARAMESWARAN

JUDGEMENT

(1.) THIS appeal is filed by the complainant in C.C.No. 232 of 2003 on the file of the Judicial First Class Magistrate Court - I, Thamarasserry. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act.

(2.) BRIEFLY the case of the complainant is as follows. The first respondent indebted to the complainant for a sum of Rs.2 lakhs, which was advanced to him as a personal loan. The payment was made out of a home loan availed by the wife of the complainant. . The accused issued a cheque dt. 10.2.2003 for the said amount. The cheque was presented on 14.4.2003 for incashment, but it was dishonoured due to insufficiency of funds in the account of the accused. The complainant sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount. Even after receipt of the notice, the accused did not reply any amount. Hence the complaint.

(3.) THE learned counsel for the appellant submitted that the specific case of the complainant is that his wife availed a house loan from Sundaram Finance Ltd., Kozhikode branch, from which the amount was given to the accused. THE learned counsel for the appellant submitted that the court below ought not to have given importance to the date of giving of loan by the complainant as it was stated by him from his memory. THE learned counsel for the appellant submitted that the court below ought to have noted that once execution of the cheque is admitted by the drawer, the presumption under Sections 118 and 139 of the N.I. Act would arise and the evidence adduced from the side of the accused is not sufficient to rebut that presumption. Learned counsel for the appellant submitted that since the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. THE learned counsel for the first respondent supported the judgment of the court below.