K P GOPI Vs. SHABNA C

JUDGEMENT

(1.) The complainant in a prosecution for the offence under S.138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') is the petitioner herein, who seeks special leave of this Court under S.378(4) of the Criminal Procedure Code (for short 'the CrPC) to file an appeal against the order of the Trial Court by which the learned Magistrate acquitted the accused in his complaint under S.255(1) of the CrPC.

(2.) The case of the complainant is that the accused purchased gold ornaments for the value of Rs.2,89,098/- from the complainant on 22/04/2008. Thereafter, on 16/10/2008, the accused paid Rs.1,30,000/- in cash and on that date, issued a postdated cheque bearing date as 28/11/2008, for the remaining amount of the sale consideration, i.e., Rs.1,59,098 / . It is the further case of the complainant that when the said cheque was presented for encashment, that was dishonoured and thereafter, settlement was arrived at the intervention of mediators and thus, Ext. P1 cheque dated 02/01/2009 for an amount of Rs.1,85,000/- was given by the accused and when the said cheque was presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the accused and the accused miserably failed to pay the above cheque amount in spite of the fact that he had received the statutory notice from the complainant and therefore, according to the complainant, the accused has committed the offence punishable under S.138 of the NI Act. With the above allegation, the complainant approached the Judicial First Class Magistrate Court - II, Kannur by filing a complaint upon which cognizance was taken for the said offence and instituted STC No. 135 of 2009. During the trial, the complainant himself was examined as PW 1 and produced Exts. P1 to P6 documents, out of which Ext. P1 is the cheque in question and Exts. P2 to P6 are the documents connected with the dishonour of cheque and demand notice. The Trial Court, on conclusion of the trial, especially in the light of the decision reported in Bhaskaran Nair v. Mohanan, 2009 (2) KHC 1021 : 2009 (2) KLT 897 : 2009 (2) KLD 9 : 2009 (2) KLJ 473 : ILR 2009 (3) Ker. 371 : 2009 (3) KLT 580 : AIR 2010 NOC Ker. 877, and on analysis of the materials placed before it found that there are suspicious circumstances surrounding the transaction alleged by the complainant. On the basis of the above finding, the Trial Court has further held that the complainant has failed in proving that the accused was having gold transaction with the complainant and she issued Ext. P1 cheque in the said transaction for discharging her liability to pay the value of gold ornaments. Thus, the Trial Court found that the accused is not guilty under S.138 of the NI Act and she is acquitted under S.255(1) of the CrPC. It is the above finding and order of acquittal proposed to be challenged by filing an appeal for which special leave of this Court under S.378(4) of the CrPC is sought for.

(3.) I have heard Sri. P. U. Shailajan, learned counsel appearing for the petitioner and I have perused the order sought to be impugned.