M SANTHOSH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant is the complainant in C.C.No.495/2000 on the file of the Judicial First Class Magistrate Mattannur which was filed alleging offence under Section 138 of the Negotiable Instruments Act. As per judgment dated 09/01/2004, the accused was acquitted under Section 255(1) of the Cr.P.C which is challenged by the appellant/complainant in this appeal.

(2.) THE case of the complainant put forward in the complaint is briefly as follows: Ext.P1 cheque dated 15/12/1998 was given by the accused to the complainant for the amount of Rs.1,20,000/- which was due from the accused to the complainant. When that cheque was presented for collection, it was dishonoured by the bank due to insufficiency of funds in the account of the accused. Accordingly lawyer notice dated 26/03/1999 was issued to the accused which was accepted on 31/03/1999 and a reply notice was sent by the accused stating untrue statements. Since the accused failed to pay the amount covered under Ext.P1 cheque, the complaint was preferred by the complainant before the learned Magistrate.

(3.) THE learned counsel for the appellant submitted that the order of acquittal of the accused is illegal and unsustainable. According to the learned counsel, presumption under Sections 118 and 139 of the Negotiable Instruments Act is in favour of the complainant for the reason that the accused has admitted the execution of Ext.P1 cheque and the evidence adduced from the side of the accused is not sufficient to rebut that presumption. THE learned counsel for the 1st respondent supported the judgment of the court below.