P T CHERIYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is filed by the complainant in C.C.No.451 of 2000 on the file of the Judicial First Class Magistrate, Kanjirapally. The second 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 complainant gave Rs.50,000/- to the accused as a loan and the accused issued a cheque for Rs.50,000/- to the complainant towards the discharge of the said amount. The said cheque, when presented, was dishonoured due to insufficiency of funds in the account of the accused. Even after issuing a lawyer notice intimating the dishonour of the cheque, the accused did not pay any amount. Hence the complaint.

(3.) THE learned counsel for the appellant submitted that the court below failed to appreciate the effect of the presumption under Sections 118 and 139 of the N.I. Act and that presumption was not rebutted by the accused by adducing evidence or by bringing out any material from the cross examination of PW1. THE 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 second respondent supported the judgment of the court below.