S SAHADEVAN Vs. TOMY MATHEW

JUDGEMENT

(1.) THIS appeal is filed by the complainant in C.C. No. 1759 of 2001 on the file of Judicial First Class Magistrate Court -I, Kochi against the judgment of acquittal of the accused dated 7.1.2004. 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 N.I. Act.

(2.) THE case of the appellant/complainant is that the first respondent borrowed a sum of Rs. 4 Lakhs from the appellant and in due discharge of the said liability, the first respondent issued a cheque dt.1.6.2000 drawn at Meenachil East Urban Co-operative Bank Ltd., Kalathukadavu Branch. When the cheque was presented by the appellant through his bank, it was returned for the reason ' not arranged for' as per memo dt. 6.10.2000. Inspite of the issuance of the notice as contemplated under Section 138 of the N.I. Act, the amount was not paid and hence the complainant filed the complaint.

(3.) THE learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and the accused was not able to rebut the presumption under Section 139 of the Act and as such the court below ought to have convicted the accused under Section 138 of the N.I. Act and should have imposed suitable sentence. THE learned counsel for the appellant submitted that the accused did not send any reply to the notice issued by the complainant before the filing of the complaint and only after the filing of the complaint a reply was issued by the accused, which is only an after thought.