RAJEEV Vs. STATE OF KERALA

JUDGEMENT

(1.) The complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.') to file an appeal against the order of the trial court, by which the learned Magistrate in his complaint, acquitted the accused under section 255(1) of Cr.P.C.

(2.) The case of the complainant is that the accused borrowed a sum of L 2,50,000/- from the complainant and towards the discharge of the same, he issued Ext.P1 cheque which when presented for encashment dishonoured for want of sufficient funds in the account of the accused and the accused has not repaid the dishonoured cheque amount in spite of a statutory notice served on him and thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. With the above allegation, the complainant approached the court of Judicial First Class Magistrate, Kayamkulam by filing a complaint whereupon cognizance was taken for the offence punishable under section 138 of the Negotiable Instruments Act and instituted C.C.No. 218 of 2008. During the trial of the case, the complainant himself was examined as PW1 and one more witness was examined as PW 2 and also produced Exts.P1 to P7. From the side of the defence, Dws 1 and 2 were examined and produced Exts.D1 and D2. After having considered the evidence and materials, the learned Magistrate came into the conclusion that the complainant has not succeeded in proving the execution of Ext.P1 cheque and the defence version that the cheque was issued in a blank form without incorporating the entries, is more probable and possible than the prosecution case and therefore, no presumption under section 139 of the NI Act can be drawn in favour of the complainant. It is on the basis of the above findings, the court below acquitted the accused under section 255(1) Cr.P.C, which findings and order of acquittal sought to be challenged for which leave of this court is sought for under section 378(4) Cr.P.C.

(3.) I have heard Sri R. Sunil Kumar, the learned counsel appearing for the petitioner. I have also perused the judgment of the trial court.