MURALEEDHARAN Vs. ARAVINDAKSHAN

JUDGEMENT

(1.) THE complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Cr.P.C. by which the accused is acquitted of the charge under Section 138 of the N.I.Act wherein the allegation is that the cheque, which covers an amount of Rs.1,70,250/-, was dishonoured.

(2.) THIS Court, by order dated 28.9.2004 in Crl.L.P.No.604 of 2004, granted leave and thus, on the basis of such order, the above appeal is preferred by the complainant.

(3.) LEARNED counsel for the appellant vehemently submitted that though the original complainant was not examined, on the basis of Ext.P1 Power of Attorney, PW1 was examined and he had deposed in favour of the complainant and in terms of the averments contained in the complaint, but the learned Magistrate miserably failed to act upon such evidence as well as the documentary evidence, produced in support of the case of the complainant. LEARNED counsel strenuously submitted that PW1 is a person, who was available along with the complainant, at the time of execution of Ext.P7 agreement and hence, the evidence of PW1 can be legally acted upon and therefore, the finding of the learned Magistrate is factually incorrect and legally unsustainable.