CHANDRAN PILLAI Vs. SREEDEVI, S M VIHAR

JUDGEMENT

(1.) This is an appeal preferred under Section 378(3) and (4) of the Criminal Procedure Code, hereinafter referred to as the Cr.P.C., challenging the legality and correctness of the judgment of the Judicial First Class Magistrate-III, Mavelikkara, in C.C.No.56/2010. The appellant is the complainant in the complaint. He had prosecuted the first respondent/accused alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act.

(2.) According to the complainant, on 09.03.2006 the first respondent had borrowed an amount of Rs.70,000/- from the complainant for the educational purpose of her son. At that time, she had agreed to repay the amount after a period of 3 years. On 09.04.2009 the accused/first respondent issued the cheque bearing No.8748 dated 09.04.2009 for Rs.70,000/- drawn on the Thiruvalla branch of the Central Bank of India. The complainant presented the cheque for encashment through the Mavelikkara branch of Alappuzha District Co-operative Bank, but it was returned dishonoured due to insufficiency of funds on 29.09.2009. He got back the cheque from his banker on 07.10.2009. Immediately thereafter, by a lawyer notice dated 12.10.2009, the first respondent was notified about the return of the cheque due to insufficiency of funds and called upon her to pay the amount. But she did not send any reply and nor the amount was paid, which gave the complainant cause of action for initiating prosecution under Section 142 of the Act.

(3.) After taking cognizance, the case was taken on file and the accused was summoned. On appearance, when particulars of the offence were read over and explained, she pleaded not guilty. The complainant and two witnesses were examined on the side of the prosecution as PWs 1 to 3. Exts.P1 to P7 were also marked. After closing the prosecution evidence, when examined under Section 313(1)(b) Cr.P.C, the first respondent maintained that she is innocent, that she had not borrowed any amount from the appellant. Her counsel filed a statement contending that she has no acquaintance with the complainant; she saw the complainant for the first time after the institution of the complaint. According to her, the cheque and the agreement were not given by her. She had not borrowed any amount from the appellant on 09.03.2006 or on any other date, so that, she has no liability to pay any amount to the appellant; she had given a signed blank cheque and signed blank stamp paper to one Sudeesh Kumar of Vazhuvadi, in consideration of some other transaction. In the said agreement, her son was not an attestor. She had put only one signature on the stamp paper. The other signatures were not put by her. All the documents were subsequently fabricated for the purpose of this case at the instance of the said Sudeesh Kumar. The appellant is the agent of the said Sudeesh Kumar. Thereafter, the accused/first respondent gave evidence as DW1 and Ext.D1 is marked on her side. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found the first respondent/accused not guilty of the offence punishable under Section 138 of the Act and acquitted her under Section 255(1) of the Cr.P.C. Challenging that judgment, the appellant initially moved an application for leave before this Court and after obtaining leave, preferred this appeal.