SURESH RAO. A.L. S/O LAXMINARAYANA RAO, VRINDAVAN COMPLEX, NEAR NEW BUS STAND, KASARAGOD Vs. HARIS P.A. S/O. ABOOBACKER, PATLA HOUSE, PATLA, KASARAGOD AND THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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 since he is aggrieved by the judgment dated 8.9.2004 in C.C. No. 303 of 1998 of the court of Chief Judicial Magistrate -Kasarasgod, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) THE case of the appellant/complainant is that the accused borrowed a sum of Rs. 1,50,000/ - from him and towards the discharge of the said liability the accused issued Ext.P1 cheque and the same was dishonoured when presented for encashment and though statutory notice was sent to the accused, no amounts was paid and therefore the accused has committed the offence. During the trial, the complainant was examined as PW1. The trial court initially by its judgment dated 18.5.2001 in C.C. No. 303 of 1998, convicted the accused under section 138 of NI Act and sentenced him to undergo simple imprisonment for 9 months. Against the above judgment, the accused preferred Crl.A. No. 121 of 2007 and the court of Sessions, Kasaragod, by its judgment dated 20.9.2003 in the above appeal, set aside the conviction and sentence imposed on the accused and remanded the matter back to the trial court with the following findings and direction :

(3.) THE Learned Counsel for the appellant vehemently submitted that the accused has miserably failed to produce any documents or materials to show that the cheque in question was handed over to Pooja Financiers. Counsel submits that, if the claim of the accused is correct that he had availed gold loan from the said financiers, definitely there would have been some documents to prove such fact, but during the trial of the case, none of such documents was produced and as such, the accused has miserably failed to substantiate his case and failed in making a probable case. Therefore, according to the appellant's counsel, the findings of the court below is incorrect and not supported by any evidence or materials.