TOM JOSEPH Vs. KURIAN JOSEPH

JUDGEMENT

(1.) THIS appeal is filed by the complainant in C.C.No. 1593 of 1998 on the file of the Addl. Magistrate of First Class No.II Mobile Court, Kottayam (Camp sitting Changanacherry). 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. Towards the amount due to the complainant, the accused issued Ext.P1 cheque. The complainant presented the above cheque for encashment, but the same was dishonoured due to insufficiency of funds. A registered lawyer notice was issued to the accused demanding payment of the amount. Though the notice was received by the accused, he did not repay the amount. Hence the complaint.

(3.) AT the time of argument, learned counsel for the appellant raised the following contentions. The court below went wrong in acquitting the accused. The court below ought to have found that the essential ingredients of the offence under Section 138 of the N.I. Act is proved and the court below ought to have convicted the accused. The version given by PW1 is probable and natural. Simply because amounts are due from the accused to the complainant, the transaction spoken to by PW1 is not improbable and the finding of the court below is perverse. In the absence of any reliable evidence, the court below ought to have found that the cheque is issued for the discharge of a legally enforceable debt. The learned counsel for the first respondent supported the judgment of the court below.