JOSEPH Vs. GLADIS SASI

JUDGEMENT

(1.) The Appellant, the complainant in C.C. No. 145/1998 on the file of Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, filed this appeal challenging the order of acquittal of the Respondent for the offence under Section 138 of the Negotiable Instruments Act in this appeal. The case of the Appellant in the complaint filed before the learned Magistrate was that for different purposes the Respondent borrowed a total sum of Rs. 1,50,000/- and though she promised to, repay the amount after bidding two Kuries subscribed by her, positively by February, 1997, it was not paid. The Appellant met the Respondent and demanded the money on 20.2.1997. The Respondent came to the office of the Appellant and disclosed that she could not get the Kuri as she is defaulter and demanded Rs. 25,000/- more so that she can bid the Kuri. Believing the words, Appellant advanced Rs. 25,000/-. Though he demanded the amount, she failed to repay the amount. Finally, the Respondent issued Ext. P1 cheque dated 2.10.1997 for Rs. 1,50,000/- drawn in her account maintained in the Fort Kochi Branch of Canara Bank. The cheque, when presented for encashment, was dishonoured. In spite of notice demanding the amount received by the Respondent, she did not pay the amount and thereby committed the offence. The Appellant has stated that Respondent originally borrowed Rest. 35,000/- on 14.9.1996 and thereafter Rs. 40,000/- to send her younger sister to Gulf and then Rs. 50,000/- for getting a house on mortgage.

(2.) The Respondent pleaded not guilty. The Appellant was examined as PW1. A witness was examined on the side of the Respondent as DW1. Exts. P1 to P6 were marked. The learned Magistrate on the evidence found that Appellant did not establish that Respondent had borrowed Rs. 1,50,000/- in four instalments as claimed by him and issued Ext. P1 cheque towards its repayment.

(3.) The argument of the learned Counsel is that the learned Magistrate did not properly appreciate the case. It is argued that the Respondent is admitting the signature in Ext. P1 cheque and also admitted that she had borrowed amount and issued Ext. P1 cheque. According to the learned Counsel, in such circumstances the learned Magistrate is bound to draw the presumption available under Sections 118 and 139 of the Negotiable Instruments Act and as the Respondent was not examined, and the evidence of DW1 do not establish that the amount borrowed was not Rs. 30,000/- as claimed by the Respondent, and the evidence of the Appellant as PW1 should have been accepted and it should have been found that Ext. P1 cheque was issued in discharge of the debt of Rs. 1,50,000/-.