M.ABDUL RUB Vs. VAIRAVAN

JUDGEMENT

(1.) The appellant is the complainant in C.C.No.45 of 2000 before JFCM Court-II, Attingal. The first respondent-accused in the above case instituted u/s.138 of the NI Act , was acquitted by impugned judgment dated 20.5.2002 and being aggrieved, this appeal challenging acquittal is filed by the complainant.

(2.) The appellant is a business man. The allegation against the accused is that he borrowed an amount of Rs.1,50,000/- on 2.1.1999 and issued Ext.P2 cheque dated 2.5.1999 in appellant's name for the amount, drawn on Indian Overseas Bank, Mananakku branch. When the cheque was dishounoured on presentment for want of sufficient funds, demand notice was issued to the accused and since he did not send any reply even after acceptance, he was prosecuted before the trial court for offence punishable u/s.138 of the NI Act .

(3.) The accused admitted borrowal of Rs.1,50,000/- from the appellant and claimed that the entire amount borrowed was repaid. His contention, however, is that the transaction pleaded in the complaint is false and the loan transaction, in fact, took place as early as in 1997. So also the cheque issued was blank without having any entries as to the date or amount been made therein. The complainant who was bound to return the blank cheque made use of it, with false entries as to the date and amount and filed complaint. In short, the contention is that Ext.P2 cheque was subjected to material alteration and it was not therefore legally enforceable nor capable of being a subject matter of prosecution u/s.138 of NI Act .