K N PONNAPPAN Vs. MUHAMMED SALIM

JUDGEMENT

(1.) THE appellant, the complainant in C.C. 100/1999 on the file of the Judicial First Class Magistrate-II, Thamarassery filed this appeal challenging the order of acquittal of the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.

(2.) THE case of the appellant in the complaint filed before the learned Magistrate was that on 1/6/1998 the respondent borrowed Rs.44,000/- from the appellant and handed over the post dated Ext.P1 cheque, in the presence of witnesses and also promised its encashment on presentation before the Bank on 30/1/1999. THE cheque when presented for encashment was dishonoured due to insufficiency of funds in the account of the respondent. After getting that intimation, the appellant issued lawyer notice on 11/2/1999 which was received by the respondent on 13/2/1999. THE respondent neither send any reply nor repaid the amount and the complaint was filed by the appellant before the lower court.

(3.) THE learned counsel for the appellant assailed the judgment of acquittal and submitted that the learned Magistrate had misappreciated the facts and evidence tendered in the case. It is argued that there was no denial of execution of Ext.P1 cheque by the respondent and it was admitted that the cheque, Ext.P1 belonged to him which contained his signature. THEn, it is for the respondent to rebut the presumption available to the appellant under Sections 118 & 139 of the N.I. Act. THE learned counsel vehemently argued that the respondent though received the lawyer notice issued by the appellant, no reply has been sent by him and the respondent was not examined. THE order of acquittal of the accused is illegal and unsustainable, it is submitted. THE learned counsel for the first respondent supported the judgment of acquittal.