SASIKUMAR K. Vs. P. K. SURENDRAN

JUDGEMENT

(1.) This appeal is preferred under Section 378(4) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., after obtaining leave of the court, challenging the legality and correctness of the judgment of the Judicial First Class Magistrate, Ramankary in C.C.No.590/2008. That case had originated on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as the Act. The appellant alleged that in consideration of a sum of Rs.50,000/- borrowed by the 1st respondent from him on 22.05.2008 at his residence, cheque No.0835927 drawn on the State Bank of India, Kainady branch dated 22.06.2008 was issued to him. He presented the cheque for collection through Kavalam branch of the Federal Bank, but it returned due to insufficiency of funds. Thereafter, the 1st respondent was alerted through a lawyer notice dated 26.08.2008, which was returned unserved. Thereafter the complaint was preferred on 04.10.2008 alleging offence punishable under Section 138 of the Act.

(2.) The 1st respondent accused entered appearance on summons. After completing all the formalities when particulars of the offence were read over and explained, he pleaded not guilty. Two witnesses were examined from the side of the complainant as PWs 1 and 2. PW1 is the appellant himself and PW2 is an independent witness who had witnessed the transaction. When examined under Section 313(1)(b) Cr.P.C., the 1st respondent denied the transaction. He filed a statement also. According to him, he is the Secretary of the Cherukara Karshaka Swasraya Sangham, which is working under the Gandhi Smaraka Kendram, Mararikulam. From a sum of Rs.1,10,000/- sanctioned by Mararikulam branch of the Federal Bank as a loan to the Sangham, he filed an application before the Sangham for granting a loan of Rs.50,000/- towards the educational expense of his daughter and for fish farming. But he was not entitled to apply for a loan exceeding Rs.12,000/-. Thus the Sangham took a decision in the presence of Adv. P.P. Madhusoodanan, Chairman of the Gandhi Smaraka Kendram Kuttanad Subcentre and Santhosh Santhi, President of the Cherukara Swasraya Sangham. That decision was taken in the residence of one P.G. Ramakrishnan of Cherukara, Punnassery. Then it was agreed that if the 1st respondent furnishes a security cheque, a loan as requested can be sanctioned to him. On that basis, after handing over the Ext.P1 cheque in blank form to the said Santhosh Santhi, the loan was availed by him. As his cultivation had ended in loss, he could not repay the amount except Rs.12,500/- in two instalments. Later some disputes arose between himself and President of the Sangham, consequent to which the President handed over the cheque to the complainant and made him to present the same for collection.

(3.) Thereafter two witnesses were examined on the side of the 1st respondent as DWs 1 and 2. Exts.D1 to D6 were also marked. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found him not guilty and acquitted under Section 255(1) Cr.P.C. The complainant assails that finding before this Court after obtaining leave under Section 378(4) of Cr.P.C.