N.NAGENDRAN Vs. GANDHI

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 27.3.2012 in S.T.No.229 of 2010 of the court of the Chief Judicial Magistrate-Kollam, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

(2.) THE case of the complainant is that, on 1.1.2010, the accused borrowed a sum of Rs.1 lakh from the complainant and on the same day, towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured as there was no sufficient fund. According to the complainant, though notice was sent demanding payment of the amount covered by the dishonoured cheque, no amount was paid and therefore the accused has committed the offence punishable under section 138 of the NI Act. The complainant himself was examined as PW1 and Exts.P1 to P6 were produced from the side of the complainant. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D3 and X1 were marked. After considering the entire evidence and materials, the trial court has found that the complainant has failed to prove the transaction between himself and the accused and finally found that the prosecution has not succeeded in proving that the accused has committed the offence punishable under section 138 of the NI Act. Consequently, the accused was acquitted under section 255 (1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged, for which leave of this Court is sought for.

(3.) LEARNED counsel for the petitioner submitted that Ext.P1 cheque which pertains to the account of the accused was produced by the complainant from his possession and the accused has also admitted the signature. Therefore, the trial court ought to have found that the complainant has succeeded in proving his case against the accused and consequently the accused are liable to be convicted. According to the learned counsel, the trial court on a flimsy ground acquitted the accused by over looking the above evidence and materials.