MATHEW K CHERIAN Vs. RADHIKA RANI

JUDGEMENT

(1.) THE case of the complainant is that the accused borrowed a sum of Rupees Three lakhs from the complainant on 30/09/2005 and issued Ext.P2 cheque, towards the discharge of the said liability, which when presented for encashment, was dishonoured due to insufficient funds in the account of the accused and the accused has not repaid the amount in spite of a formal notice served on her. Therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. Whereas the defence taken by the accused is that she was a surety for one Sivakumar her son and Ext.P2 cheque was given as a security connected with the chitty transaction between the complainant and her son and thus she denied the transaction and the claim of the complainant.

(2.) DURING the trial of the case PW.1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence Exts.D1 and D2 were marked. DWs.1 and 2 were examined. The trial court after considering the entire materials and evidence came into a conclusion that Ext.P2 cheque is not supported by consideration and evidence of PW.1 is not sufficient to prove that Ext.P2 cheque is supported by consideration. Thus the learned Magistrate finally held that the evidences are insufficient to show that the accused borrowed Rs.3,00,000/- from the complainant or issued Ext.P2 cheque to discharge a legally enforceable debt. It is the above finding and order of acquittal sought to be challenged in this appeal.

(3.) THE learned counsel vehemently submitted that the evidence of PW.1 is sufficient to prove the transaction and especially when the accused has admitted the transaction, the finding of the court below is incorrect. It is also the submission of the learned counsel that though the statutory notice was received by the accused, no reply was issued, denying the transaction or putting a case, as taken during the trial of the case. Thus according to the learned counsel on the basis of the available evidence on materials the trial court ought to have convicted the accused. But the trial court on an erroneous consideration of the evidence and materials, came into a wrong conclusion and acquitted the accused.