RADHAMANIAMMA,D/O.BALAKRISHNA PILLA Vs. KITTUNNI

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 appellant as she is aggrieved by the order dated 24/01/2009 in S.T. Case No.2666 of 2007 of the court of the Judicial Magistrate of the First Class, Chittur 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 on 06/05/2007, the accused borrowed an amount of Rs.1,50,000.00 from the complainant and on that day itself the accused issued a post dated cheque dated 06/06/2007 for the said amount and the complainant was made to believe that the cheque would be honoured when presented for encashment. According to the complainant, though the said cheque was presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice served on him and thus, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial, the complainant herself was examined as PW.1 and produced Exts.P1 to P4(b) documents. No evidence, either oral or documentary, was produced from the side of the defence. The trial court after having considered the entire evidence and materials on record found that, the complainant has admitted that Ext.P2 cheque was issued as security and also found that the complainant has unambiguously admitted that the accused has not made an assurance that Ext.P1 cheque issued would be honoured, when it is to be presented for encashment. The trial court also found that, the evidence of PW.1 reveals that, she is a money lender without any valid licence. Thus, it is found that the accused has not given Ext.P1 cheque, for discharge of any liability or other debts due to PW.1 and finally the accused is not found guilty and he is acquitted under Section 255(1) of Cr.P.C. It is against the above finding and order of acquittal, the present appeal is preferred.

(3.) THE learned counsel for the appellant vehemently submitted that Ext.P1 cheque contained the signature of the accused/first respondent and he has no explanation as to how the said cheque reached the hands of the complainant and further the evidence of PW.1- the complainant proves the due execution of the cheque and the transaction. Thus, according to the learned counsel, the trial court overlooking the above facts and circumstances and evidence, erroneously held that, the accused has not given Ext.P1 cheque to PW.1 for discharge of any debt or other liability due to PW.1. The learned counsel for the respondent strenuously submitted that, the finding of the court below is based upon the available evidence and materials on record and by assigning appropriate reasons and therefore no interference is warranted.