MANMADA KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The complainant in a prosecution for the offence under S.138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') is the appellant since he is aggrieved by the judgment dated 04/09/2008 in ST No. 2588 of 2005 of the Court of the Judicial First Class Magistrate - V, Neyyattinkara by which the learned Magistrate acquitted the accused under S.255(1) of the CrPC.

(2.) The case of the complainant is that the accused had owed ' 6 lakhs to the complainant and towards repaying that amount, the accused issued Ext. P1 cheque to the complainant and when the same was presented for encashment, dishonoured due to insufficient fund in the account of the accused and the accused has not repaid the amount in spite of the statutory notice served on him and thus, according to the appellant, the accused has committed the offence punishable under S.138 of the NI Act. From the side of the complainant, PWs 1 to 3 were examined and Exts. P1 to P7 were marked. From the side of the defence, DW 1 was examined and Ext. D1 was marked. The Trial Court, after considering the entire evidence and materials, came into a conclusion that the complainant has miserably failed to prove the transaction averred in the complaint and hence, the accused is entitled to get acquittal. Accordingly, the accused is acquitted under S.255(1) of the CrPC. It is the above finding and order of acquittal challenged in this appeal.

(3.) Learned counsel for the appellant vehemently submitted that the finding of the Court below is incorrect and illegal, especially when S.118(a) and S.139 of the NI Act are available to draw presumption in favour of the complainant. The learned Magistrate, according to the counsel, failed to extend the benefit under the above provisions in favour of the complainant, especially when Ext. P1 cheque contained the signature of the accused. It is also the contention of the learned counsel that PW 1 is the Power of Attorney Holder of the complainant and he had discharged his role as a Power of Attorney and not that of the complainant. But, the learned Magistrate arrived into an erroneous conclusion and found against the complainant. On the strength of the decision reported in Johnson Scaria v. State of Kerala and Another, 2006 KHC 1592 : 2006 (3) KLJ 561 : 2006 (4) KLT 290, it is the submission of the learned counsel that the below ought to have considered that the law does not mandate proof of original transaction or existence of original consideration. Therefore, according to the learned counsel, the findings of the Court below are illegal and erroneous. According to the counsel, on the basis of the available evidence and materials, after reversing the order of acquittal recorded by the Trial Court, the respondent / accused is liable to be convicted and punished.