JOSE THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is filed by the complainant in C.C. No. 217 of 2000 on the file of the Judicial First Class Magistrate - II, Kanjirapally. The second respondent herein was the accused in that case, which was filed by the complainant alleging the offence punishable under Section 138 of the N.I. Act.

(2.) THE case of the complainant in brief is that the accused borrowed a sum of Rs.3 lakhs from the complainant on 12-3- 2009 and in discharge of that liability the accused issued a cheque for Rs.3 lakhs drawn on the Service Co-operative Bank, Elamgulam on 9-4-2000. On presentation for encashment, the cheque was dishonoured for want of sufficient fund in the account of the accused. THE complainant issued statutory demand notice to the accused within the prescribed time limit. THE accused received the notice, but failed to pay the cheque amount.

(3.) THE learned counsel for the appellant submitted that the court below ought to have held that the evidence of PW1 and Exts.P1 to P8 series clearly established the case against the accused. THE learned counsel for the appellant further submitted that the court below ought to have found that the accused could not rebut the presumption under Section 139 of the N.I. Act even by preponderance of probabilities. THE learned counsel for the appellant submitted that the court below ought not have given much weight to Ext.D1 to the case in hand especially when DW3 did not support the defence and more over there is nothing in Ext.D1 which indicates any connection with the cheque involved in the case or any transaction between the complainant and the accused. THE learned counsel for the appellant further submitted that the court below ought to have found that the defence had no satisfactory explanation as to how Ext.P1 cheque came into the possession of the complainant. THE learned counsel for the second respondent/accused supported the judgment of the court below.