LALIKUMAR Vs. RAJU

JUDGEMENT

(1.) THE complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 27.3.2009 in C.C.No.305 of 2007 of the court of Judicial First Class Magistrate, Kayamkulam by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) THE case of the complainant is that the accused on 15.4.2007 borrowed an amount of Rs.1,30,000/- from the complainant and to discharge the said debt, the accused issued Ext.P1 cheque dated 15.5.2007 on the date of the borrowal of the amount itself. It is the further case of the complainant that when the above cheque was presented for encashment, the same was dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of formal demand and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. To substantiate the above claim, during the trial of the case, Pws.1 and 2 were examined and Exts.P1 to P6 were marked. The case set up by the accused is to the effect that he has not borrowed any amount from the complainant, but on his intervention, the complainant had lent Rs.1,10,000/- to one Mr.Thomas and the said person absconded. The complainant met the accused to hand over his blank cheque to him. The accused has not adduced any evidence either oral or documentary. The trial court, after considering the entire evidence and materials, found that the execution of cheque is not proved and hence, the complainant cannot claim the benefit of statutory presumption under Sections 139 and 118 of the N.I.Act and it is also held that the testimony of the complainant is doubtful as he is not aware of the details regarding the accused, the nature of his employment and his financial capacity. Accordingly, the learned Magistrate found that the complainant failed to prove his case and accordingly, the accused is found not guilty and consequently, he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

(3.) I have carefully considered the arguments advanced by the counsel for the appellant and the counsel for the respondent. I have perused the judgment of the trial court.