E.R.PREMARAJAN Vs. NIMITHA PREM

JUDGEMENT

(1.) This appeal is pitted against two divergent findings by the trial court and the Sessions Judge in appeal. Complainant in a proceedings alleging offence punishable under Section 138 of the Negotiable Instruments Act, has moved this Court under Section 378(4) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the correctness of the judgment acquitting the first respondent. C.C.No.524/1999 was originated before the Judicial First Class Magistrate, Thalassery, on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act. The appellant contended that in consideration of a loan of Rs.1,80,000/-, borrowed on 02.04.1999, and in discharge of the liability, the first respondent issued the Ext.P1 cheque dated 10.05.1999, drawn on the Catholic Syrian Bank Ltd., Thalassery Branch. The appellant presented the cheque for encashment through the Punjab National Bank, but it was dishonoured due to insufficiency of funds. Thereafter, the appellant caused to issue a lawyer notice, but it was returned unclaimed. Then the complaint was instituted whereupon, the first respondent was summoned. She pleaded not guilty and faced trial.

(2.) The matter is being pursued by the power of attorney holder, all along. The power of attorney holder was examined as PW1 and Exts. P1 to P7 were marked on the side of the complainant. On conclusion of evidence, when examined under Section 313(1)(b) of the Cr.P.C., the first respondent reiterated the plea of innocence. To the last question, she said that she does not know the complainant, that she had borrowed an amount of Rs.20,000/-, from the elder brother of her husband, the power of attorney holder and the cheque was issued in consideration of that amount as security; even though the amount was repaid, the cheque was not returned. In defence, she gave evidence as DW1. After hearing counsel on both sides, by judgment dated 27.11.2002, the learned Magistrate upheld the arguments of the appellant and found the first respondent guilty of offence under Section 138 of the Act and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for three months. Aggrieved by the same, the first respondent preferred appeal before the Sessions Court under Section 374(3)(a) of the Cr.P.C. After hearing counsel on both sides, by the impugned judgment, the learned Additional Sessions Judge, Thalassery, reversed the finding of conviction and acquitted the first respondent. Against that finding, the complainant has preferred this appeal, after obtaining leave of the Court under Section 378(4) of the Cr.P.C.

(3.) I heard the learned counsel on both sides. The learned counsel for the appellant argued that after having admitted the execution of the subject cheque, inconsistent stands have been taken by the first respondent. She did not even receive the notice, even though it was sent in her correct address. In cross examination of PW1, the power of attorney holder, she took the stand that the Ext. P1 was issued in consideration of Rs.20,000/- borrowed by her from the power of attorney holder for the marriage of her daughter. But when gave evidence as DW1, she maintained that the amount was borrowed by her husband from PW1 and the Ext.P1 was handed over in a signed blank form, as security. The learned counsel also complained that the Sessions Court did not appreciate the contentions properly. The decision relied on by the Sessions Court in G. Gopan v. Tonny Varghese and Another [2008 (1) KLT 257] has no application to the facts of the case. The court was also not justified in concluding that the appellant, E.R. Premarajan is an imaginary person. Relying on the decision in Narayanan A.C. and Another v. State of Maharashtra and Others [2013(4) KLT 21], the counsel submitted that prosecuting a complaint under the Negotiable Instruments Act by the power of attorney holder cannot be a taken as an issue for acquitting the accused.