SIBY BHASKARAN, S/O. BHASKARAN Vs. TONY THOMAS

JUDGEMENT

(1.) THE order of acquittal of the respondent, who was accused in S.T.251/1995 on the file of the Judicial Magistrate of the First Class, Erattupetta, is challenged in this appeal by the appellant, who was the defacto complainant in the above case. According to the appellant, respondent issued Exhibit -P1 cheque for an amount of Rs. 19,000/ - drawn on Syndicate Bank, M.G. Road Branch, Ernakulam and he presented the cheque for encashment through the State Bank of Travancore, Plassanal Branch. The cheque was dishonoured by saying that there was no sufficient amount in the account of the respondent for honouring the cheque. Appellant issued notice on 1 -4 -1992 to the respondent informing him of the dishonour of the cheque and demanding payment of the amount covered by the cheque. Exhibit -P7 postal acknowledgement card would show that notice was received by the respondent on 15 -4 -1992. Since the amount covered by the cheque was not paid by the respondent, complaint was filed by the appellant alleging that the respondent committed the offence under Section 138 of the Negotiable Instruments Act. The trial Court, after taking evidence, found that the respondent discharged his liability under the cheque even before he lawyer notice was issued to him and hence the respondent did not commit the offence punishable under Section 138 of the Negotiable Instruments Act. Respondent was hence acquitted by the trial Court.

(2.) IN this appeal the appellant says that the finding by the trial Court that under Exhibit -D3 agreement dated 11 -3 -1992 the respondent discharged his liability even before the notice was issued to the respondent is incorrect.

(3.) ACCUSED was examined as D.W.1 and his contention is that he is a Share Broker having licence from the Stock Exchange and that the appellant entrusted 400 share certificates with him and when the appellant demanded back the share certificates those certificates were with the Stock Exchange and hence he issued Exhibit -P1 cheque to the appellant for an amount of Rs. 19,000/ -. He would contend that he did not execute Exhibit -P9 agreement. The non -production of Exhibit -P9 along with the complaint is also pointed out by the respondent to show that Exhibit -P9 is not a genuine document.