K V VIJAYAN Vs. R ANIL

JUDGEMENT

(1.) THE complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this Court u/s.378(4) of Cr.P.C. to file an appeal against the order of the trial court by which the learned Magistrate, in his complaint, acquitted the accused u/s.255(1) of Cr.P.C.

(2.) HEARD learned counsel appearing for the petitioner. I have also perused the judgment of the trial court.

(3.) THE trial court after considering the evidence and materials on record, specifically found that though the complainant has got a case that he had paid an amount of Rs.1,85,000/- to the accused on 12.1.2006, the averment in the complaint is that the accused requested him for a loan for Rs.1,85,000/- and the complainant handed over Rs.18,500/- to the accused on 12.1.2006 and towards the discharge of the said liability, the accused issued Ext.P1 cheque for an amount of Rs.18,500/-. THE learned Magistrate has also found that in the list of documents filed along with the complaint, the cheque amount is shown as Rs.18,500/-. THE complainant was examined on 4.5.2010 and it is also discernible from the judgment that after completing the examination of PW1, he had filed Crl.M.P.No.563/2010 seeking permission to make necessary correction with the complaint in respect to the amount, handed over by him to the accused thereby to correct the figure "Rs.18,500"/- (Rupees Eighteen thousand and five hundred only) as Rs.1,85,000/- (Rupees One lakh eighty five thousand only), but the said petition was dismissed by the court. THE Magistrate has also found that though a correction was sought, in the complaint, as indicated above, but in the affidavit also the amount of loan availed by the accused is shown as Rs.18,500/- only. It is also found that in the statutory notice also the due amount is shown as Rs.18,500/-. THE learned Magistrate has also found that a statutory notice in terms of the proviso of Section 138 of NI Act also not issued within the time stipulated. It is the further finding of the learned Magistrate that there is no evidence to show that Ext.P1 cheque was drawn by the accused. It is on the basis of the above materials and evidence and the findings the learned Magistrate acquitted the accused u/s.355(1) of Cr.P.C.